DISSENTING OPINION OF JUDGE SAJÓ

To my regret, I cannot share the views expressed by the majority. I therefore respectfully dissent, for the reasons explained below.

Applicability of Article 8 of the Convention to the present case

Error! Bookmark not defined. . In the present case the Court concludes that “the applicant’s 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). I could not agree more, except to say that this not only “relates” to the right of self-determination but is an exercise of that right, which is the crux of the right to private life. The applicant’s right to self-determination reflects her right to personal autonomy and freedom of choice (see S.H. and Others v. Austria [GC], no. 57813/00, § 80, ECHR 2011; McDonald v. the United Kingdom , no. 4241/12, §§ 46-47, 20 May 2014; and Pretty v. the United Kingdom , no. 2346/02, § 61, ECHR 2002 ‑ III). Here, the applicant’s choice (a right) was to donate her embryos to the advancement of life-saving science rather than allow them to lose viability over time [43] . The nature of the right at stake in this case is the applicant’s freedom of choice. This case is not about the rights of parenthood or even the possible rights of a foetus; the applicant’s right here is to act as a free and autonomous individual with regard to her genetic footprint.

2. According to the Court’s case-law, “[t]he Court’s task is not to review the relevant law and practice in abstracto , but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention” (see N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X). The issue is not the use of embryos in research as regulated by Italian law but the way the general measure affected embryos which had been created and cryopreserved before any restriction was in force. This case is about a very specific situation: what happens when legislation intervenes and impedes the exercise of that pre-existing right in regard to pre-existing embryos? The embryo would have the potential to develop into a human being, but this remains merely a potential as it cannot happen without the consent of the donor(s), as discussed in Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007 ‑ I .

The applicant decided not to give her consent. Certainly, a law which required the applicant to use the embryos herself would violate her right to determine whether or not to become a parent. A law which required the applicant to allow her embryos to be “adopted” by a third party would likewise violate her fundamental right not to be compelled into parenthood [44] . There is only one option left under Italian law: indefinite cryopreservation of the non-implanted embryos [45] .

3. I do not consider that the applicant’s “right to choose” (as a matter of self-determination) is “a particularly important facet of an individual’s existence or identity” (see pargraph 169 of the present judgment). While the point is debatable, I accept that there is no European consensus [46] concerning the fate of cryopreserved embryos and will not discuss whether the experience of seven or four countries is sufficient to draw that conclusion (although the comparative data provided by the Court do not reflect the practice of the countries in regard to embryos that had been created for reproductive purposes before the imposition of a ban on research, and only a few countries prohibit all research on embryonic stem cells). It follows that the State has a wide margin of appreciation to restrict the right.

Whether there has been an “interference” “ in accordance with the law ”

4. The Court acknowledges that there has been an interference with the applicant’s right to private life under Article 8. However, it is important to emphasise that at the time that the applicant chose to undergo in vitro fertilisation (IVF), there was no law in place in Italy regarding the fate of surplus embryos. As the Grand Chamber has already held, the phrase “in accordance with the law” requires that “domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention” (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014). The applicant was facing a situation in which she had no real choice but to see her embryos being stored in cryopreservation indefinitely by the State. This had not been foreseeable when she chose to undergo IVF. She could not possibly have known that she would have only four months after the death of her partner to decide what to do with the embryos before that decision was removed from her control by the new legislation. It is noteworthy that the law does not contain any specific rule as to the fate of embryos which were being cryopreserved before the entry into force of that law.

The legitimacy of the aim pursued

5. In the present case the Government have not provided any clear reasons for the aims of the interference. These aims were reconstructed (with some effort) by the Court and then accepted by it. In the absence of any justification by the Government for the aim of the interference, the majority supply two possible justifications: the protection of morals and the protection of the rights of others. As to the protection of morals, the Court does not provide information about public morals in Italy, where the impugned practice was legal for many years [47] . The Government did not refer to the protection of morals and the Court does not explain where the moral interest lies; nor does it take into consideration any specific moral interest in the proportionality analysis.

6. As to the rights of others, “[t]he Court acknowledges that the ‘protection of the embryo’s potential for life’ may be linked to the aim of protecting morals and the rights and freedoms of others” (see paragraph 167 of the present judgment) [48] . Who are these others? Is the embryo “another”, that is, a person? There is no answer, except that the embryo is described in Law no. 40/2004 as a “subject” having rights. That they do not fall under the category of possessions does not transform embryos into human beings or rights-holders [49] . The fact that there is a State interest in protecting potential life cannot be equated with a right of a person.

7. The Court finds that a right of others is present because “the potential for life” may be linked to that alleged right. I hope I am mistaken, but I fear that we face a risk here of loosening the standard applicable to the list of permissible aims for the restriction of rights. So far, the Court has consistently held that the list of exceptions to the individual’s Convention rights is exhaustive and that their definition is restrictive (see, among other authorities, Svyato-Mykhaylivska Parafiya v. Ukraine , no. 77703/01, § 132, 14 June 2007, and Nolan and K. v. Russia , no. 2512/04, § 73, 12 February 2009). This is essential to any serious protection of rights. Unfortunately, in S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014, it was held that “to be compatible with the Convention, a limitation of this freedom must, in particular, pursue an aim that can be linked to one of those listed in [Article 9 § 2 of the Convention]. The same approach applies in respect of Article 8 of the Convention.” From the position that there “can be a link” to those exhaustively listed exceptions, we now move to the position where a link may exist if this is not ruled out as unreasonably speculative (“there may be”, rather than “there can be” a link).

Failure to undertake a serious scrutiny of a State’s purported aim in imposing the restriction will undermine the potential for rights to be protected from any proportionality analysis. The scrutiny of the aim of a measure is part of the supervisory role of the Court (see Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24). If we wish to apply the margin of appreciation doctrine, we could say that in matters of economic policy there is little scope for such an analysis, given the cognitive advantage the national legislation or national authorities enjoy or that, “[b]ecause of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’” (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). This reasoning cannot be applied without additional and convincing reasons to areas where the issue is not the general “public interest” in economic or social policies but morals, health policy or science [50] .

8. The judgment accepts, without further reflection, the strength of the State’s interest in banning all uses of IVF embryos apart from implantation. However, in S.A.S. v. France (cited above) it is noted that “the Court’s practice is to be quite succinct when it verifies the existence of a legitimate aim within the meaning of the second paragraphs of Articles 8 to 11 of the Convention” (ibid., § 114). Nevertheless, the Grand Chamber went on to explain in S.A.S. v. France (ibid.) that, particularly when the Government’s objectives are subject to dispute, (as is the case in the present context, see paragraphs 135 ‑ 37 of the present judgment), the Court will undertake a thorough examination of the link between the measure and the objective. In the present case, the link was taken for granted without any enquiry being made of, or justification sought from, the Government.

Necessary in a democratic society

9. The Court has affirmed that, even where there is a broad margin of appreciation under Article 8, the Government must still adduce “relevant and sufficient reasons” justifying the interference (see ZaieÅ£ v. Romania , no. 44958/05, § 50, 24 March 2015; Hanzelkovi v. the Czech Republic , no. 43643/10, § 72, 11 December 2014; Winterstein and Others v. France , no. 27013/07, § 147, 17 October 2013; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008) [51] . Regarding general measures that interfere with a right under Article 8, the Court has held as follows: “First, the Court may assess the substantive merits of the Government’s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual” (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003 ‑ VIII).

10. A measure of interference that serves the above aim is a general one. The Court has held that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it (see James and Others , cited above, § 36). The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013).

11. The legislative history of Law no. 40/2004 indicates that for decades the matter was not regulated in Italy owing to ongoing disagreement in society and among professional experts. The divisions continued during years of parliamentary debate. Opponents of the proposed ban [52] claimed that it reflected a specific ideological conviction, while its supporters claimed that it served the protection of life and the family, and was a solution that followed natural law, not the dictates of the Catholic religion. The divisions continued right up to the final debate [53] .

12. The Government failed to provide evidence of a thorough parliamentary discussion of the fate of embryos already in cryopreservation at the time of entry into force of the new Law [54] . Moreover, the Law was enacted by a majority, amidst serious disagreement [55] . The Italian parliamentary debate therefore differed from that considered in Animal Defenders International , cited above, where, among other things, there was cross-party support in Parliament. There is also no evidence that the applicant’s rights or personal situation were taken into account; the Law contains a blanket ban that deprives the applicant of her right to freedom of choice. Contrary to the situation in Animal Defenders International , there could not be a domestic proportionality analysis in her case. Not only does this general ban disregard the applicant’s right to self-determination with respect to an important private decision, it does so in an absolute and unforeseeable manner. The Law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, four months before the Law came into force.

13. In contrast to the clearly articulated moral interest presented by the applicant, and the strong social interest in the scientific research at stake, which lends considerable weight to the otherwise “not particularly important right” of the applicant, the majority simply observe that the Italian legislature carried out a thorough examination of this issue prior to drafting Law no. 40/2004 (see paragraph 184 of the present judgment). As mentioned above, the conditions required in that regard established in Hatton and Others and Animal Defenders International (both cited above) are not satisfied. In the absence of clear reasons arising from the parliamentary debate, it is only when the Government provide sufficient clarity that the Court can properly inquire into why the blanket ban on donation is necessary when weighed against the applicant’s personal choice. The Court’s citation from the preparatory works does not explain why a ban on donation is necessary for Italy’s purported moral preference in favour of embryos in the circumstances of the present case. Since the Government cannot force a person to use her embryos to create a human being without her consent, a blanket ban on all other life-promoting uses (such as medical research) is not only overly restrictive of the individual’s freedom of self-determination, it also disregards the constitutional values recognised in Article 33 of the Italian Constitution [56] and the value system of the Convention, which recognises the interest of Article 10 in scientific research (see Mustafa Erdoğan and Others v. Turkey , nos. 346/04 and 39779/04, §§ 40-41, 27 May 2014). More importantly, the protection of life cannot be relied on, not only because the meaning and weight of that argument remain contested in regard to the applicant’s embryos but also because those embryos, notwithstanding their potential for life, have no chance of becoming human beings. As to embryos in general in Italy, the duty to protect the potential of the non-viable embryo cannot exist in absolute form in Italian law given that even a viable foetus can be aborted [57] .

14. The applicant in this case faced an impossible and unforeseeable choice. At best, the choices open to her were to use the embryos herself, or allow another couple to use them, or to let her biological material languish indefinitely until such (unknown and unknowable) time as the embryos lost viability or could be used for a procreative purpose contrary to her clearly expressed wishes.

15. Given the applicant’s age, it would not be possible for her to use all five embryos herself. Additionally, according to expert testimony presented at the hearing before the Court and not contested by the Government, in practice, her embryos could not now be used by another couple because of the age of the embryos and because they were not subjected to the proper tests at the time of their creation. Therefore, these embryos will not in fact be used to create a human life because they will never be implanted into a uterus [58] . This medical reality is not contested by the Government.

16. Most importantly, the applicant has made a clear choice not to allow her embryos to be used for procreation.

17. The applicant’s interest in donating her embryos to scientific research, rather than allowing them to remain unused, is a deeply personal and moral decision. This choice is driven by her desire to honour her late partner and to further invaluable medical research with the potential to save lives [59] . According to expert testimony presented at the hearing (and to many other international medical and scientific sources), research deriving from embryonic stem cells is currently being used in clinical trials for spinal cord injuries, Parkinson’s disease and other diseases that are currently incurable or difficult to cure. Countries which allow such research have developed sophisticated forms of informed consent and controls to ensure that the embryos are used in ethical ways [60] . Such research uses the pluripotent (undifferentiated) cells created through the IVF procedure to develop a greater understanding of human development and discover new ways of treating diseases that have been devastating and incurable for many people around the world [61] . The cells created through IVF are unique and valuable biological material, which the applicant wishes to put to use, rather than leave to lose viability as they remain frozen indefinitely.

18. Whether or not the Government’s desire to protect the potential for life outweighs the applicant’s interest in using her own genetic material to contribute to life-saving science is a question that cannot be dismissed out of hand. The judgment in this case lacks any sort of proportionality analysis and does not consider the important third-party interest in the health benefits arising from scientific discovery. By simply stating that there is no European consensus on whether embryos left over from IVF procedures should be used in scientific research, the Court departs from its well-established standards. There is of course a margin of appreciation regarding this issue, but that does not mean that the law may operate in whatever manner a government sees fit. The measure must still be proportionate to the interference with the applicant’s rights.

19. In order for an interference to be proportionate the Government must provide legitimate (relevant and sufficient) reasons. Even assuming, in view of Evans (cited above, § 81), that there is a wide margin of appreciation in IVF cases, “since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments” [62] , the interference still cannot be arbitrary. In Italy both abortion and research on foreign stem-cell lines are permitted. The Law disregards the interest in preventing actual human suffering through scientific research in the name of the protection of a potential for life which, moreover, cannot ever materialise in the circumstances of the case. I cannot see why preponderant weight is attached to the potential for life when Italian law does allow the abortion of a viable foetus, and in the particular circumstances of the present case, that potential cannot materialise, in the absence of the consent of the applicant. This attitude and the related explanation are not only inconsistent but plainly irrational and as such cannot be sufficient justification for the proportionality of the measure.

[1] . Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, the United Kingdom and Ukraine.

[2] . Bulgaria, Czech Republic, Estonia, Finland, France, Greece, Hungary, the Netherlands, Portugal, Serbia, Slovenia, Spain, Switzerland and the former Yugoslav Republic of Macedonia.

[3] . Embryonic cells not yet differentiated and each of which, in isolation, has the potential to give rise to an entire organism ( Larousse Medical Dictionary).

[4] . In my view, the non-exhaustion of domestic remedies is the only problematic issue, but this objection was properly dismissed in view of the explicit position of the Italian Constitutional Court, which has adjourned its examination of a case raising the same legal question, pending the decision of the Grand Chamber in the present case (see paragraph 53 of the present judgment).

[5] . Unesco General Conference 29 C/Resolution 17, Unesco GC, 29th session (11 November 1997), adopted unanimously and by acclamation. See also the Guidelines for the Implementation of the Universal Declaration on the Human Genome and Human Rights annexed to 30 C/Resolution 23 (16 November 1999). These Resolutions had already been anticipated by the World Medical Association Declaration on Ethical Principles for Medical Research Involving Human Subjects, which will be dealt with later on in this opinion.

[6] . UN General Assembly Resolution A/RES/53/152, 9 December 1998, adopted without a vote.

[7] . The Council for International Organizations of Medical Sciences (CIOMS) is an international, non-governmental, non-profit organisation established jointly by the WHO and Unesco in 1949. Like those of 1982 and 1993, the 2002 CIOMS Guidelines are designed to be of use to countries in defining national policies on the ethics of biomedical research involving human subjects.

[8] . See also the WHO publication “Standards and Operational Guidance for Ethics Review of Health-Related Research with Human Participants”, 2011. In 2003 the WHO had already approved the Guideline for Obtaining Informed Consent for the Procurement and Use of Human Tissues, Cells and Fluids in Research, in order to assist researchers in dealing with the ethical issues relating to how clinical research materials should be obtained, used and eventually disposed of, as well as informed consent. The guideline also applies to previously collected human biological materials stored in repositories. It provides that monetary payment or other inducement for donating embryonic tissue for research is expressly prohibited.

[9] . Unesco General Conference Resolution 32 C/15, Unesco GC, 32 nd session (2003).

[10] . United Nations General Assembly Resolution 280, Fifty-ninth session (March 23, 2005), UN Doc A/RES/59/280. The declaration was passed with 84 countries voting in its favour, 34 countries voting against it, and 37 countries abstaining.

[11] . Unesco General Conference, 33rd session (2005).

[12] . Unesco International Bioethics Committee, “The Use of Embryonic Stem Cells In Therapeutic Research: Report of the IBC on the Ethical Aspects of Human Embryonic Stem Cell Research” , BIO-7/00/GT-1/2(Rev.3), 6 April 2001. The IBC is a body, created in 1993 and made up of thirty-six independent experts, that follows progress in the life sciences.

[13] . Unesco International Bioethics Committee, Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention, SHS-EST/02/CIB-9/2(Rev.3), 24 April 2003.

[14] . Unesco International Bioethics Committee, Report of IBC on Human Cloning and International Governance, SHS/EST/CIB-16/09/CONF.503/2 Rev.2, June 2009.

[15] . Unesco International Bioethics Committee, Advice of the IBC on the Patentability of the Human Genome, Eighth session of Unesco (IBC), Paris, 12-14 September 2001.

[16] . Resolution no. 23/81, OEA/Ser. L/V/II.54, Doc. 9 Rev. 1, § 18 (b), 6 March 1981.

[17] . Baby Boy v. the United States , Resolution No. 23/81 of the IACHR, 6 March 1981.

[18] . Artavia Murillo et al. (“ in vitro fertilization”) v. Costa Rica (preliminary objections, merits, reparations and costs), judgment of 28 November 2012, Series C No. 257, paragraphs 315-16.

[19] . Draft African Charter on Human and Peoples’ Rights, Article 17, O.A.U. Doc. CAB/LEG/67/1 (1979).

[20] . Resolution AHG/Res.254 (XXXII).

[21] . The Commentary of the Charter, written by the EU Network of Independent Experts on Fundamental Rights, explains that Article 3 (paragraph 2) was drafted with the purpose of limiting certain practices in the fields of medicine and biology. Furthermore, it states that the four principles guaranteed therein are not exhaustive and that they should be read in line with the provisions of the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention).

[22] . See also the European Union policies on funding research and technological development cited in paragraphs 62 to 64 of the present judgment. The practice has been that projects which include research activities that destroy human embryos, including for the procurement of stem cells, are excluded.

[23] . EGE Opinion no. 12, Ethical aspects of research involving the use of human embryos in the context of the 5th framework programme, 23 November 1998. The EGE is an independent body that advises the European Commission on ethical issues in science and new technologies in connection with legislation and policy.

[24] . EGE Opinion no. 15, Ethical aspects of human stem cell research and use, 14 November 2000.

[25] . EGE Opinion no. 16, ethical aspects of patenting inventions involving human stem cells, 7 May 2002.

[26] . EGE Opinion no. 22, Recommendations on the ethical review of hESC FP7 research projects, 20 June 2007.

[27] . The point of departure of the Assembly was that “from the moment of fertilisation of the ovule, human life develops in a continuous pattern, and that it is not possible to make a clear-cut distinction during the first phases (embryonic) of its development”. In its Recommendation 874 (1979) on a European Charter on the Rights of the Child, the Assembly had already asserted “the rights of every child to life from the moment of conception”.

[28] . See also Resolution 1934 (2013) on ethics in science and technology.

[29] . The Oviedo Convention (ETS no. 164) was adopted on 4 April 1997 in Oviedo, Spain, and came into force on 1 December 1999. Hitherto it has been ratified by twenty-nine States. The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings (ETS no. 168) was adopted on 12 January 1998 and came into force on 1 March 2001. The Additional Protocol on Human Rights and Biomedicine, concerning Biomedical Research (ETS no. 195), which was adopted on 25 January 2005 and came into force on 1 September 2007, covers the full range of research activities in the health field involving interventions on human beings, including on foetuses and embryos in vivo .

[30] . It should be pointed out that Article 14 is one of the absolute provisions of the Oviedo Convention, as can be seen from Article 26 § 2.

[31] . See paragraphs 8-20 and 165 of the Explanatory Report to the Oviedo Convention.

[32] . To this extent I fully share the Grand Chamber’s conclusion that the Oviedo Convention is a sign of the narrowing of the Council of Europe member States’ margin of appreciation (see paragraph 182 of the present judgment). In Evans v. the United Kingdom ([GC], no. 6339/05, ECHR 2007 ‑ I), which also concerned the fate of frozen human embryos, the parties and the Court agreed that Article 8 was applicable and that the case concerned the applicant’s right to respect for her private life. According to the powerful joint dissenting opinion of Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele, “[a] sensitive case like this cannot be decided on a simplistic, mechanical basis, namely, that there is no consensus in Europe, therefore the Government have a wide margin of appreciation; the legislation falls within the margin of appreciation … that margin of appreciation should not prevent the Court from exercising its control, in particular in relation to the question whether a fair balance between all competing interests has been struck at the domestic level . The Court should not use the margin of appreciation principle as a merely pragmatic substitute for a thought-out approach to the problem of proper scope of review”. An identical comment could be made in Parrillo .

[33] . See paragraphs 161 to 162 of the Explanatory Report to the Oviedo Convention. In the case of a conflict between the freedom of research and the protection due to embryos, States parties may go beyond the mandatory “adequate” protection due to the latter, and adopt more prohibitive policies.

[34] . It is worthwhile pointing out that PACE Recommendation 934 (1982) on genetic engineering had already called for States “to provide for explicit recognition in the European Convention on Human Rights of the right to a genetic inheritance which has not been artificially interfered with, except in accordance with certain principles which are recognised as being fully compatible with respect for human rights (as, for example, in the field of therapeutic applications)”. In fact, the Convention is not indifferent to the creation and instrumentalisation of embryos for scientific experimentation, the creation of hybrids or human cloning. These are essential questions pertaining to the protection of what ontologically can be defined as a form of human life, and are certainly within the remit of the Convention. I do not see how we can accept a wide margin of appreciation under the Convention if a Contracting Party wants, for example, to pursue a eugenic or racist pre-natal policy.

[35] . The applicant’s position is in fact contradictory because she also claims that she has a property right over her embryos. It is unacceptable to invoke at the same time a right to property and a right to privacy with regard to the human embryos “owned”. Unless the implication was that using and disposing of human beings – in the instant case human embryos – would be a form of maintaining a relationship with them.

[36] . This is not a new statement of principle by the Court, as can be seen from paragraph 59 of Costa and Pavan v. Italy (no. 54270/10, 28 August 2012). In the very exceptional human circumstances of that case, I voted for the Costa and Pavan findings and naturally I subscribe to the principle stated in paragraph 59. But I must also clarify today that it was not the intention of the Second Chamber to create a new Convention right to become the parent of a healthy child and therefore an unfettered negative “right to self-determination” consisting in disposing of non-implanted embryos. Neither explicitly nor implicitly was such a right established in that judgment. The judgment was determined by the principle of necessity, in so far as the test of the less intrusive measure envisages minimal impairment of the competing interests by asking whether there is an equally effective but less intrusive means available to further the same social need. In doing so, the Court also acknowledged the relevance of the precautionary principle in assessing interventions in the medical sphere, which aims at avoiding more severe interventions in favour of less severe ones at all stages of human life (on the precautionary principle in the Italian legal order, see the opinion of the Comitato nazionale per la bioetica (Italian National Bioethics Committee), entitled “Precautionary principle: bioethical philosophical and legal aspects”, of 8 June 2004). Although paragraph 65 of Costa and Pavan uses the word “right”, this unfortunate maladresse de plume should not be taken literally, since the same judgment also refers, in paragraph 57, to the parents’ “desire” to have a healthy child. The circumstances of Costa and Pavan are in no way similar to the present case, and can certainly not be used to ground an unfettered “negative right” to decide the fate of non-implanted embryos.

[37] . See the clear reasoning of judgment no. 27 of 18 February 1975 ( Ritiene la Corte che la tutela del concepito - che già viene in rilievo nel diritto civile (artt. 320, 339, 687 c.c.) - abbia fondamento costituzionale. L'art. 31, secondo comma, della Costituzione impone espressamente la "protezione della maternità" e, più in generale, l'art. 2 Cost. riconosce e garantisce i diritti inviolabili dell'uomo, fra i quali non può non collocarsi, sia pure con le particolari caratteristiche sue proprie, la situazione giuridica del concepito ) and judgment no. 35 of 30 January 1997 ( il diritto alla vita, inteso nella sua estensione più lata, sia da iscriversi tra i diritti inviolabili, e cioè tra quei diritti che occupano nell'ordinamento una posizione, per dir così, privilegiata, in quanto appartengono - per usare l'espressione della sentenza n. 1146 del 1988 – “all'essenza dei valori supremi sui quali si fonda la Costituzione italiana” ), and the opinions of the Comitato nazionale per la bioetica (Italian National Bioethics Committee) of: 22 June 1996 (Identity and status of the human embryo); 27 October 2000 (Therapeutic use of stem cells); 11 April 2003 (Research using human embryos and stem cells); 16 July 2004 (The use for research purposes of H1 and H9 cell lines deriving from human embryos); 15 July 2005 (Bioethical considerations concerning the so-called “ootid”); 18 November 2005 (Adoption for birth of cryopreserved embryos deriving from medically assisted procreation); 26 October 2007 (The fate of embryos resulting from medically assisted procreation and not complying with the conditions for implantation); and 26 June 2009 (Chimeras and hybrids, with special attention to cytoplasmic hybrids).

[38] . Hence I cannot accept the reasoning in paragraphs 176 and 180 of the present judgment, which, while referring to Evans (cited above), S.H. and Others v. Austria (cited above) and Knecht v. Romania , no. 10048/10, 2 October 2012, concludes that “the ethical and moral questions inherent in the concept of the beginning of human life” are indicative of a “broad margin of discretion”.

[39] . The same conclusion can be drawn from S.H. and Others v. Austria , cited above, § 82.

[40] . Article 16 of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts could be relied on here.

[41] . See, for example, Vo v. France [GC], no. 53924/00, § 75 and 80, ECHR 2004 ‑ VIII; Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007 ‑ I; Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007 ‑ V; Brüggemann and Scheuten v. Germany , no. 6959/75, Commission’s report of 12 July 1977, Decisions and Reports (DR) 10, p. 100; H. v. Norway , no. 17004/90, Commission decision of 19 May 1992, DR 73, p. 155.

[42] . See, for example, Dickson, cited above, Evans , cited above, and S.H. and Others v. Austria [GC], no. 57813/00, ECHR 2011.

[43] . This does not imply that the cells at issue are a part of her “biological identity” as the judgment describes it, but rather that the applicant has a right to primary control over her genetic footprint.

[44] . See Evans , cited above. Of course Evans is only partially relevant to this case, as the applicant’s rights in the present case do not involve parenthood.

[45] . Although the applicant is not currently paying for the storage of these embryos, according to her, there is no legal provision which would prevent the medical storage service from charging her. The Government have not contested that submission.

[46] . It will remain a mystery to me why the lack of a European consensus on the existence of a right is so often interpreted against the existence of a right, where such a right can be deduced from the autonomous concept of a Convention right, for example also in the light of international-law developments and social realities. If the exercise of a freedom has been found to be permissible in at least some countries, then this should create a presumption in favour of that Convention right if this is otherwise compatible with a reasonable interpretation of the meaning and scope of the right. This does not of course rule out the possibility that there may be good reasons in another country for restricting that right. Or are we saying that the recognition of the broader scope of a right in a number of countries is arbitrary and irrelevant?

With its controversial margin of appreciation doctrine, as it is understood by the Court, the State is exempted from the duty to provide a substantive justification for the existence of an imperative need to interfere. Reference to the lack of European consensus as a decisive indicator of the absence of a certain meaning or scope of a Convention right disregards the Preamble to the Convention, which refers to the “further realisation of human rights” as one of the methods for pursuing the aim of the Convention.

[47] . Of course this is not the duty of the Court. It is the Government who should know and explain what the aim of the legislation is. At least during the last stage of the debate the proponents of the law expressly denied that the law served some kind of moral purpose. Giuseppe Fioroni, Member of Parliament, stated that the law did not serve Catholic morals, but natural law (19 January 2004).

http://legxiv.camera.it/_dati/leg14/lavori/stenografici/framedinam.asp?sedpag=sed408/s000r.htm

[48] . The Court draws on the Government’s written submissions under Article 1 of Protocol No. 1, whose applicability in this case has been rejected. It was only in the oral address that a submission was made that the law served to protect the “embryo’s potential for life,” but this was not made in the context of Article 8, § 2 of the Convention.

[49] . Organs, for example, are not treated as pure possessions, but that does not confer on them the status of “human being”. The legal status of biological material is not obvious and must be clarified before any assumptions can be made about rights.

In Italian legal theory a “subject” is a point of reference for legal relations, not a person. All persons are subjects but not all subjects are persons (“ Ogni persona è soggetto, non ogni soggetto è persona ”), Cass., 24 July 1989, no. 3498, in Foro it ., 1990, I, c. 1617.

[50] . James and Others (cited above) granted only a “certain margin of appreciation”, which over the years has “developed” into a “wide” margin of appreciation.

[51] . See also the case-law cited in paragraph 168 of the present judgment.

[52] . Key provisions of the law had already been found to be unconstitutional or in violation of the Convention (see paragraphs 27-39 of the present judgment, and Costa and Pavan v. Italy (no. 54270/10, 28 August 2012)).

[53] . “ Tutti (sia il rapporto Warnock sia gli scienziati che hanno partecipato alle varie audizioni di Camera e Senato) hanno dichiarato: sì, è vita, però... ” “All (both the Warnock Report and the scientists who participated in the different hearings of the Chamber and the Senate) have declared: yes, life, but…”, Deputy Maria Burani Procaccini, in defence of the Draft (19 January 2004)

http://legxiv.camera.it/_dati/leg14/lavori/stenografici/framedinam.asp?sedpag=sed408/s000r.htm .

[54] . The Law did not in any way envisage what would happen to pre-existing surplus embryos. It was only the National Bioethics Committee that decided ex post facto (18 November 2005), on uncertain legal grounds, that adoption for birth was permissible (see paragraphs 19-20 of the present judgment).

[55] . 25% of the electorate participated in the invalid referendum on the Law in 2005, with 88% in favour of a partial repeal.

[56] . “The Republic guarantees freedom of the arts and sciences, which may be freely taught.” The Government did not provide evidence that the constitutional values of science were put in the balance in Parliament, and only made submissions about the use of pluripotent cells in research.

[57] . Commentators were quick to point out the internal inconsistencies in the Law. See Carlo Casonato, Legge 40 e principio di non contraddizione: una valutazione d’impatto normativo. Collana Quaderni del Dipartimento di Scienze Giuridiche dell'Università di Trento, vol. no. 47, Università di Trento, 2005.

[58] . Perhaps, then, the Government expect that humanity will develop the scientific ability to grow a human being from an in vitro embryo without the use of a uterus?

[59] . A choice that is at least as closely linked to the preservation and protection of life as that of the current legislation.

[60] . See the Stanford Medical School report at: http://med.stanford.edu/news/all-news/2011/04/new-approach-to-ivf-embryo-donations-lets-people-weigh-decision.html .

[61] . See, for example, the testimony of Professor de Luca in Patient Handbook on Stem Cell Therapies , published by the International Society for Stem Cell Research: www.closerlookatstemcells.org/docs/default-source/patient-resources/patient-handbook---english.pdf ; and National Institutes of Health: www.nih.gov .

[62] . I do not think that fast-moving science and technology is of relevance here, unless science will one day enable the production of babies outside the uterus and outside the human body, and there will be a moral consensus that in such cases the embryo has the right to become a homunculus (ectogenesis), irrespective of the wish of the donors. I cannot imagine that such considerations are applicable in the present case, notwithstanding the efforts to create an artificial womb.