Parrillo v. Italy

The applicant, Parrillo, claimed that a legislative ban preventing her from donating embryos conceived in vitro to scientific research violated her rights to respect for private life and peaceful enjoyment of her possessions under Article 8 and Article 1 of Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”).

The applicant underwent in vitro fertilization before a blanket ban on scientific donation was enacted. She had five embryos placed in cryopreservation. Parrillo’s partner died four months before the ban was enacted, and she did not take any immediate actions regarding the embryos. She claimed to make multiple requests for the embryos to be returned over the next seven years, before applying to have them donated for scientific research. She was refused, because stem cell research was banned and punishable.

Parrillo submitted an application that her rights had been violated directly to the European Court of Human Rights.

The Court ruled against Parrillo.

The majority found that neither Parrillo’s Section 8 nor Section 1, Article 1 rights were violated. Parrillo alleged that her section 8 rights were infringed due to the embryos genetic connection to Parrillo, which turned the choice over the fate of the embryos into an intimate aspect of Parrillo’s personal life relating to self-determination. Because Parrillo’s case did not concern prospective parenthood, however, the right to scientific donation was found to not be a particularly important aspect of her identity. Additionally, the majority determined the lack of consensus among the member states of the Council of Europe afforded the Italian Government a wide margin of deference. As a result, the majority determined the legislative discussions over the implementation and continuance of the ban in Italy signaled the ban was proportionate and necessary in a democratic society within the meaning of Article 8.2 of the Convention, thus outweighing Parrillo’s right to respect for her private life.

Regarding the potential violation of Article 1 of Protocol 1, the majority found that having regard to the economic and pecuniary scope of the provision human embryos could not be reduced to ‘possessions’, and that it was thus an incompatible ratione materiae with the provisions of the convention. The Court elected not to look at Section 2 of the Convention.

Judge Pinto De Albuquerque concurred, finding that the State maintained positive obligations to prohibit embryo and embryonic stem cell research subject to two exceptions. The first was therapeutic scientific research that was taken with the aim of protecting the health and development of the embryo when no alternative modes existed. The second allowed embryonic stem cell research when it was performed exclusively on stem cell lines obtained from embryos destroyed outside of Europe. The judge critiqued the majority’s focus on the biological and genetic link between Parrillo and her embryos, finding that it both failed to recognize each embryo’s unique biological identity, and failed to consider the embryos right to be implanted.

Judge Sajo dissented. Sajo found that the embryos could not develop without the consent of Parrillo, that Parrillo maintained a right to self determination, and that the embryos did not maintain a right to potential for life. Given these findings, Sajo determined that the lack of substantive reasons provided by the Government with respect to the need for a total ban, the fact that the ban came into place without any transitional provisions after the embryos had already been fertilized, and the fact that the Government maintained inconsistent legislation by allowing abortions, should have led the Court to find that the Parrillo’s right to self determination outweighed the state’s interests.

“In the instant case the Court must also have regard to the link existing between the person who has undergone in vitro fertilisation and the embryos thus conceived, and which 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.” Para. 158.

“The Court observes at the outset that, unlike the above-cited cases, the instant case does not concern prospective parenthood. Accordingly, whilst it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity.” Para. 174.

“Lastly, the Court observes that in this case the choice to donate the embryos in question to scientific research emanates from the applicant alone, since her partner is dead. The Court does not have any evidence certifying that her partner, who had the same interest in the embryos in question as the applicant at the time of fertilisation, would have made the same choice. Moreover, there are no regulations governing this situation at domestic level.” Para. 196.