JOINT PARTLY DISSENTING OPINION OF JUDGES CASADEVALL, ZIEMELE, POWER-FORDE, DE GAETANO AND YUDKIVSKA

1. The applicant alleges that the prohibition under Italian law on donating embryos conceived through medically assisted reproduction to scientific research is incompatible with her right to respect for private life. The Court has ruled that her ability to exercise a conscious and considered choice regarding “the fate of her embryos” concerns an intimate aspect of her personal life and, accordingly, relates to her right to “self-determination” (see paragraph 159 of the present judgment). On this basis, it concludes that Article 8 of the Convention is applicable. It proceeds to find no violation because, inter alia , the ban was “necessary in a democratic society” to protect the rights and freedoms of others within the meaning of Article 8 § 2 of the Convention.

2. Whilst we have voted for no violation of Article 8 of the Convention, there is a significant difference between our reason for so doing and the reasons outlined in the present judgment. We part company with the majority long before it reaches its assessment of the proportionality of the prohibition in question. We consider that the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention in accordance with Article 35 §§ 3 and 4 thereof.

3. To date, both the former Commission and the Court have considered many sensitive cases which have posed fundamental questions concerning either potential, early, embryonic or foetal human life and/or its interconnection with the personal rights of others [41] . Whilst the Court has found that matters related to procreation – and, in particular, to the decision of becoming or not becoming a parent – constitute an aspect of a person’s private life [42] , it has refrained from pronouncing on the fundamental question as to when “protected life” under the Convention begins. It has, therefore, avoided making any ruling on the status of the human embryo, as such.

4. As the judgment confirms, the applicant, in reality, has asserted the right “ to make use of embryos ” (see paragraph 149 of the present judgment) or, to put it another way, the right “ to decide the fate ” of embryos (see paragraph 152) which were created through in vitro fertilisation. The Court has now ruled, for the first time, that such matters as “ deciding the fate of ” or “ making use of ” human embryos fall within an individual’s right to respect for private life (see paragraph 152). Accordingly, the present judgment marks a critical turning point in the Court’s jurisprudence. It makes a far-reaching and, in our view, unacceptable pronouncement on the status of the human embryo.

5. The majority’s finding is disconcerting not only in terms of the utilitarian overtones used when speaking of the human embryo but also because of the disturbing rationale that forms the basis of its pronouncement. The majority’s reason for finding that a choice concerning “the fate of the embryo” falls within the scope of the applicant’s private life is “ the link existing between the person who has undergone in vitro fertilisation and the embryos thus conceived ”. This link, the majority assert, is due to the fact that “ the embryos contain the genetic material of the person in question and accordingly represent a constituent part of that person’s genetic material and biological identity ” (see paragraph 158 of the present judgment) (emphasis added).

6. To find that the embryo is “a constituent part” of the applicant’s identity is a far-reaching finding indeed. Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity – biological or otherwise. Whilst sharing the genetic make-up of its biological “parents”, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development. If a human embryo is no more than a constituent part of another person’s identity then why the abundance of international reports, recommendations, conventions and protocols that relate to its protection? These instruments reflect the broad general acceptance within the human community that embryos are more than simply “things”. They are, as the Parliamentary Assembly of the Council of Europe has put it (in paragraph 10 of Recommendation 1046 (1986)), entities that “ must be treated in all circumstances with the respect due to human dignity ” (see part III, Council of Europe documents, section A, of the present judgment).

7. In adopting the approach it has taken in this case, the Court has endorsed a positivist and reductionist view of the human embryo. It has classified it as “ a constituent part ” of another person’s genetic material and biological identity and has thus decided that its fate and the “use” to which it may be put is a matter that falls within that other person’s right to respect for private life. Embryos, like all other human entities, inevitably, share the genetic DNA of their biological “parents”. The mere sharing of genetic material is an unsafe and arbitrary basis for determining that the fate of one human entity falls within the scope of another person’s right to self-determination.

8. Regrettably, the muddled reasoning of the majority that is evident on the question of admissibility persists when it comes to the merits (see paragraph 167 of the present judgment). In assessing the proportionality of the ban in question the Court considers that it may be linked to the aim of protecting “the rights and freedoms of others”, but this, the majority quickly asserts, does not involve any assessment as to whether the word “others” extends to human embryos!

9. In our view, and consistent with the Court’s case-law to date, it would have been preferable to find that since prospective parenthood is not an issue in this case, the applicant’s right to “ self - determination” as an aspect of her private life simply does not arise. Her submission that the donation of embryos would confer upon her a certain “noble feeling” is noted, but the Convention, of course, is concerned exclusively with the protection of fundamental human rights rather than with the fostering of feelings of one kind or another. Her asserted right to “ make use of the embryos ” for scientific research is not a right within the scope of Article 8 of the Convention. Accordingly, in our view, this part of the application should have been rejected as incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 §§ 3 and 4 thereof.