Biological Identity v. Geographical Boundaries
Bishop Elio Sgreccia
President, Pontifical Academy for Life
Carlo Casini
Member, Pontifical Academy for Life

The problems of In Vitro Fertilization and Frozen Embryos

Even in the short history of artificial fertilization, it has often happened that after initiating the process of in vitro fertilization in which several embryos have been generated and preserved by freezing, the couple has then broken up, separated and divorced.

This has given rise to legal problems: to whom do these embryos belong? What is their value and what will be their fate?

The best-known case was the U.S. lawsuit in Maryville, Tennessee, in 1989, with proceedings to decide the fate of several frozen human embryos after the separation of a husband and wife who had brought the embryos to life by recourse to reproductive technology.

Jerōme Lejeune, the great geneticist, was asked to testify on the nature of the embryo: is it a human being or a thing?

The judge of the first instance rightly held that the answer to this query was preliminary and acknowledged the request of the mother (who had requested the transfer of the embryos to her womb), to be in the right, not so much because of the fact that the woman prevails over the man in the matter of procreation, but rather, because this was the only way to preserve the right to life of the child.

The proceedings of the Maryville case were published by Lejeune himself (L'Enfant concentrationnaire, Le Sarment, Fayard, 1990).

Unfortunately, on appeal, the judges said that the former spouses would have to mutually decide; since the father, however, did not wish his former wife to give birth to his children, the embryos remained frozen.

There have been similar but less well-known judicial proceedings in Italy, and for the most part they have been resolved by attributing to the father the right to veto the woman's request for the transfer of the embryos, as in the case examined in 2000 by the Tribunal of Bologna (see Medicina e Morale 2000, 6: 1193-1202).

The same issue has now come before the European Court of Human Rights, an institution of the Council of Europe based in Strasbourg.

On 7 March 2006, a decision was adopted in the Evans v. United Kingdom case. Before submitting to the removal of her ovaries for therapeutic reasons and in agreement with her partner, identified in the Court proceedings as "J", Natalie Evans asked that samples of her oocytes be taken; six were fertilized with "J"'s sperm. The resulting embryos were frozen for possible future transfer to Natalie Evans' uterus.

Fertilization occurred in November 2001 but in May 2002, "J" — who in the meantime had separated from Evans — requested the embryos be destroyed in accordance with a 1990 British law on fertilization and embryology.

In fact, according to British law, either of the two partners who have agreed to request the application of medically assisted procreation can revoke or modify the agreement as long as the embryo has not been used.

Evans opposed the destruction of the embryos and requested their transfer to her uterus, but all the courts she had turned to determined that she was in the wrong, justifying with various arguments the legislation on the revocability of consent. These can be summed up by the theory of the equivalence of the right to be or not to be a parent (even after conception, before birth) and, in addition, the juridical equivalence between the two partners.

Having exhausted all possibilities of legal action in her own country, Evans turned to the Court of Strasbourg, invoking the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950).

Entitlement to right to life

Basically, there were two issues to be examined: entitlement to the right to life and the father's prerogative with regard to the embryos (value of life principle and family principle).

On the first point the Court, in a rather long and wordy sentence, decided on extremely concise and incomplete grounds. It revealed that in the absence of any European consensus on the scientific and juridical definition of the beginning of life, the different positions of the various States are legitimate; and since British law does not acknowledge the embryo to be an autonomous subject of rights, the guarantee set out in art. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms cannot be invoked.

This law, classified as the "right to life", expressly asserts that "everyone's right to life shall be protected by law". Thus, the Court's grounds for such a decision strike at the heart of all teaching on human rights, whose function is precisely to make possible an assessment of the positive laws on the basis of the rights inherent in human nature and, as such, universal and immutable.

If a Court, specifically called to protect human rights, recognizes them only to the extent that they are recognized in written laws, the reference of all international and national documents on human rights becomes meaningless.

It is not consensus — which can vary in time and place — that is the basis of human rights, but the real dignity of the human being. Otherwise, it would be impossible to emerge from that logic of positiveness which ultimately identifies the law with the will and hence, force.

There were times when the laws permitting slavery enjoyed a universal consensus, but this did not make them just. Moreover, in the Nuremberg Trials, the defence of criminals was deemed unacceptable, even when they proved that they had respected their nation's laws.

The superficial motivation of the case Evans v. United Kingdom attacks in depth the roots of human rights, partly because the principal problem today is that of their entitlement.

A splendid and complete system of rights could be described, but its drafting would be useless if we did not know who their subject was or to whom they referred. It would be similar to lacking the nail needed to hang a picture.

The legislator, however, cannot be trusted with the definition of "man"; it would be like reverting to the identification of all law with written law, even in the constitutive point of human rights.

Rosmini's concise formulation is well known: "The law is the subsisting person". And Alberto Trabucchi, one of the best-known Italian civil lawyers, wrote: "Man: here is the law!".

It is crucial to stress the gravity of this issue. Equality is the indisputable consequence of the recognition of human dignity, which constitutes the starting point of the Universal Declaration of Human Rights, and which Paul VI described on the occasion of his Visit to the United Nations in 1965 as: "All that is most exalted in human wisdom".

But if man is defined by the law, the principle of discrimination bursts in, because the law — as has so often happened — can fully define as a human being only someone who is not a slave, whose skin is not black or even who does not belong to the Aryan race.

The Strasbourg Court is limited to recording the different legislative solutions concerning the identification of the moment when human life begins. Despite wishing to stay anchored to positive law, even less should it have applied the principle of precaution. The latter is positivized precisely in the European Human Rights Convention and states that in doubtful cases, the solution that reinforces respect for human rights should be chosen.

The hasty treatment of the issue seems in fact to reveal a hint of embarrassment which, unfortunately, is also to be found in other decisions, not only of this Court but also of many National Constitutional Courts.

A more direct way would have been to counter the theory of the right to life from conception by denying the very existence of a human being. Nevertheless, it is obviously impossible to take this road in order to achieve the intention of either repealing or applying existing laws; people prefer recourse to the authentic omission of problems if not even juridical expedients.

Is the fetus included?

While wishing to remain in the context of positive law, it must be remembered that the European Convention itself is positive law. The person interpreting it must only say whether "everyone" or "toute personne" are terms that also include the conceived human being. It is important to know that the European Court has not yet made any pronouncement on this point.

The Strasbourg judges are aware of this. In the case Vo v. France of July 2004, referred to in the decision commented on here, having gone through all previous rulings on abortion cases and decisions of the Human Rights Commission (which worked alongside the Court in the solution of controversies until 1998), the Strasbourg judges wrote:

"Art. 2 of the Convention does not mention the temporal limits of the right to life. In particular, it fails to define the 'person' whose life is protected by the Convention. To date, with regard to this, the Court has not yet resolved the problem of when the right to life of each person begins, nor found out whether the unborn fetus possesses this right".

To avoid pronouncing an opinion, international and national judges have at times resorted to certain acrobatics. This is not the case with the verdict of Vo v. France, in which there was a discussion as to whether, in the event of an abortion caused by a doctor's error concerning a woman who had wanted to carry her pregnancy to term, this abortion should be considered a crime.

The Court replied that the protection of the fetus may also be of a non-penal character and that compensation for injury due to the mother also protects the right to life of the child, should it be considered to exist.

'Human being' or 'person'?

In other decisions, however, a distinction was suggested on the one hand between "human being" and "person" (X v. United Kingdom, 13 May 1980), thereby introducing a criterion of discrimination between people, or it was preferred to derive the prohibition of advertising abortion from a moral, self-referential claim rather than from respect for the rights of "another", thus avoiding the issue of establishing whether the right to life proclaimed in art. 2 also applies to the fetus ("Open Door Counselling and Dublin Well Woman v. Ireland", 29 October 1992); on the other hand it is stated that "nothing proves that the parties who stipulated the Convention were intending to work for one solution rather than another" ("Brüggermann and Schouten v. Federal Republic of Germany", 12 July 1977).

This latter attempt to escape the fundamental question (is the conceived embryo a human being or a thing?) is a forceful attack on the doctrine of human rights. If these take precedence over written law, then an interpretation of the norms established by legislators who refer to them and thus, in a certain way, positivize them, cannot be effected with the logic used to understand positive law.

The survey on the legislator's intention, carried out in particular via the historical method (an examination of the preparatory work), supposes that the intention that counts is the one objectivized in a lexical formula whose content is, to a certain extent, obscure.

But if a written text refers to human rights, in the case of the right to life, the interpretative logic must be that proper to human rights, in accordance with their ontology and not with what legislators may think.

The American Declaration of Independence in 1776 proclaimed that "all men are created equal", and the person who wrote it did not consider that this principle should be extended to black slaves; thus, the juridical institution of slavery in the United States of America existed until 1985, but the fact nonetheless remains that even before the 13th Amendment to the U.S. Constitution. the interpretation that most closely conformed with human rights was favourable to the equality of whites and blacks.

Powers of the father

The second issue treated in the Evans v. U.K. case concerns the powers of the father concerning the life of the child and is closely connected with the one examined above.

The Court had already expressed a judgment on an opposite situation: Natalie Evans wanted the pregnancy, whereas in the case of Boso v. Italy, (verdict, 5 September 2002), the woman had terminated the pregnancy against her husband's wishes and he had requested recognition of his paternal right to intervene in the destiny of his own child, although Italian abortion law does not permit it.

As in another similar case (R.H. v. Norway, decision of the Human Rights Commission, 19 May 1992), the Court rejected the petition and permitted the woman's wishes.

In the Evans case, therefore, it was to be expected that once again, in the conflict between mother and fathers wishes, the former would prevail, especially since, in comparison with cases concerning abortion, what she wanted coincided with the right to life of the embryo.

The Court, on the other hand, claimed that English law was not censurable. It consequently judged the father to be in the right, and ruled against the destruction of the embryos.

Contrary to feminist and "abortionist logic that gives primacy to the woman in the context of procreation, the Court's argument put on an absolutely equal footing the woman's right to have the child and the man's right not to have it. Consequently, just as the technology of artificial procreation cannot be initiated without the agreement of both partners, likewise only their common consensus, the Court wrote, would have permitted them to proceed with it.

Therefore, in a certain sense, the Court contradicted its own jurisprudence by constantly adhering instead to the penalization of the unborn child.

In addition to art. 2 of the Convention. Evans had requested the application of art. 8 (women's right to respect for a private and family life) and art. 14 (principle of equality). The verdict was summed up concisely in the examination of art. 2, while the discussion of the other two articles was spread over many pages. It even overcame the argument proposed by Evans, whose only possibility of having a child, since she had had her ovaries removed, was dependent on the transfer of the already existing frozen embryos.

Consequently, she herself could invoke the principle of equality, given that her ex-partner could have children by other women, whereas she, deprived of the possibility of having any, was suffering de facto discrimination in comparison with fertile women.

Self-determination

However, the Court overcame this position by showing that it considered the self-determination of both the man and the woman an essential content of human rights.

In this way, the important question posed by human rights was exposed: is the content of human dignity the autonomy of every individual or is it something that mysteriously places the life of the human being on a different and superior plane in comparison with every other material being surrounding him?

The question is the flip side of the coin of the entitlement issue. Despite the declared neutrality with regard to the interpretation of art. 2. in comparing the rights of born mother and father, the Court shows it has made the choice, minus the courage to say so.

Making the embryo a "thing" is a presupposition of the solution which. in the name of the equal autonomy of both members of the couple, destroys the conceived fetus. The one who is not "equal" is precisely the child. At the very least, the principle of precaution between the two former partners could have been evoked.

One then understands the crucial importance of the way in which certain details apparently of secondary importance are disciplined in the legislation or medically assisted procreation.

British law permits the revocation of consent as long as the embryo has not been used, because, subsequent to the Warnock Report, it (conventionally) establishes that human life begins on the 14th day after fertilization, and therefore, should the transfer to the uterus or its subjection to experimentation occur earlier. revocation of the measures already implemented would be pointless.

Viceversa, a recent Italian law (40/2004) establishes that consent can no longer be revoked once the embryo is formed. In Italy, Natalie Evans would have won because the conceived embryo is considered a subject of rights by this law from the moment of fertilization.

In effect, we are saying that Natalie Evans had conceived a person in Italy. But in England, this was far from the case! It is almost as if recognition of a human being depends on geographical boundaries rather than on biological identity.

Events such as the one examined by the European Court would not occur if, as Italian law prescribes, the freezing of embryos was prohibited.

Moreover, the interpretation of the verdict draws attention to the risks of inhumanity that are inherent in in-vitro fertilization.

Obviously the power of Law 40/2004, approved in Italy, lies in the fact that it is not hounded on convention (this is so because we want it to be so), but is based on reality as a result of the scientific and anthropological given: a human embryo is an individualized human being from the moment of fertilization and already automatically contains the value of the adult.

These risks do not only concern the right to life, to the family and to the dignity of procreation. They also concern the further potential degradation of the culture of human rights, already undermined by abortion and euthanasia.

Believers should realize that human rights, whose fatherhood anti-Christian Illuminism wrongly claimed, need to be defended above all from those who know the true origin and full content of human dignity.

It is a question of preventing that turning point with tragic consequences from being reached by the historical process that has discovered the idea of human rights as rights inherent in every person that precede every Constitution or legislation, so that the affirmation of human rights is considered the principal goal and boast of modern society.

Today, unfortunately, human rights are often dissected and indeed turned into the opposite, especially at the most symbolic moments of existence, such as birth and death (cf. John Paul II, Evangelium Vitae, n. 18).


Taken from:
L'Osservatore Romano
Weekly Edition in English
6 September 2006, page 3

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