Introduction

“We made history”.

These are the words by which Irish women welcomed the results of the referendum that took place last May 2018 on the removal of the prohibition of abortion from the Irish legal order.

What constitutes a revolution for Ireland after the ban on abortion was enshrined in the Constitution thirty-five years ago, also represents a strong indicator of the importance that the debate on the beginning of life and reproductive rights has assumed worldwide, also propelled by the relentless scientific progress. The debate on these questions has assumed unprecedented proportions around the world, and Europe and Latin America appear to be in the front line, although their historical and legal background is often quite different. The time for reform seems to have eventually come: Ireland and Poland, in Europe, and Argentina and Chile, in Latin America, offer paradigmatic examples of how change is simmering globally. However, the sensitive nature of the issues at stake cannot be overlooked and common legal standards are to be sought in order to accommodate the legal, ethical and cultural pluralism that characterizes them. In this respect, a bioethical and human rights-based approach seems to provide the adequate forum for a constructive discussion and for ensuring appropriate protection for the often conflicting rights at stake. Indeed, it is not unusual that the safeguarding of prenatal life clashes with various entitlements of the mother, ranging from life, physical integrity, health, self-determination and private life and, from a wider perspective, also the right to enjoy the benefits of scientific progress and its applications. In fact, the gap can be hard to bridge when some of the reproductive horizons offered by scientific progress, of which in vitro fertilization and embryo manipulation are prime examples, are taken into account.

This study focuses on how the judicial bodies of two major regional human rights systems, namely the European Court of Human Rights (ECtHR) within the Council of Europe (COE) and the Inter-American Court of Human Rights (IACtHR) within the Organization of the American States (OAS) have tackled the definition of the beginning of life and its interplay with reproductive rights offering, through their case law, an important and innovative interpretation of the European Convention on Human Rights (ECHR)² and the American Convention on Human Rights (ACHR).³

This paper primarily analyses the scientific framework concerning the beginning of life and the definition of the different stages of the development of the human embryo, from conception and implantation to the evolution into the foetus, along with the evolution of the philosophical thought on these issues. A reconstruction of the legal evolution of the status of embryo and of reproductive rights and their conceptualization as “non-independent human rights”, also through analysis of some interesting national experiences, brings the reflection to its international dimension. The scientific complexity of the question and the difficulty to deal with the pluralism of views worldwide is reflected by the landscape of international law, whose approach is assessed through analysis of the most significant human rights generalist and thematic treaties, ranging from the International Covenant on Civil and Political Rights (ICCPR)⁴ to the Convention on the Rights of the Child (CRC)⁵ and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).⁶

Under this premise, the focus is set on the respective case law of the ECtHR and of the IACtHR through analysis of their significant decisions concerning the status of human embryo and prenatal life when human rights issues related to in vitro fertilization (IVF) and abortion were raised before them. Specifically, this study addresses the approach adopted by the Strasbourg Court in the judgments Vo v. France, Evans v. the United Kingdom, S.H. and Others v. Austria, Costa and Pavan v. Italy, Parrillo v. Italy and A, B, C v. Ireland, and by the Court of San José in the cases of Artavia Murillo v. Costa Rica and ‘Beatriz’. Again, the judgment issued by the IACtHR in the case of the Comunidad Indígena Xákmok Kásek c. Paraguay is considered as a missed opportunity to provide some important reading of the scope of the right to life with respect to the nasciturus, and some better understanding of the pluralism within the OAS and the possibility to reconcile the different views is sought by expanding on the case of Baby Boy v. the United States, when the Inter- American Commission on Human Rights faced with the challenges related with prenatal life for the first time in the Inter-American system in 1981. Some explanations are sought for the different approach of the two Courts and the distinct results achieved through critical, comparative analysis: in this regard, whilst the ECtHR seems to valorise pluralism through a careful application of the margin of appreciation, the IACtHR does not apply this doctrine in the Artavia Murillo judgment, and offers some interesting examples of an evolutive reading of States’ duties under the ACHR with regard to reproductive rights, in line with its wide use of international binding and non-binding reference instruments pursuant to Article 31 of the Vienna Convention on the Law of the Treaties (VCLT).⁷ It is particularly significant for this study that the San José Court theorized a right to enjoy the benefits of scientific progress and its application in the field of reproductive rights. The comparative assessment of the approach of the two bodies paves the way to the elaboration of some proposals aimed at enhancing the theorization and the judicial protection of reproductive rights, for the purpose of theorizing a possibly generalized access to the applications offered by biomedical progress capable of ensuring appropriate respect for prenatal life. Interventions on human embryos are the main focus, and the reconstruction of a suitable international framework is developed by relying on Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)⁸ and the relevant soft law, legal sources elaborated in the framework of the UNESCO, especially the regime of sharing of benefits contemplated in Article 19 of the UNESCO International Declaration on Human Genetic Data.⁹ At the same time, the limitations to viable and promising applications of scientific progress set by international law are analysed, with particular regard to the prohibition of human germline editing that, along with the prohibition of reproductive cloning, represents one of the two biomedical practices about which the international community has expressed a convergence of views.

In particular, the present study aims at identifying some common guarantees for reproductive rights, without disregarding prenatal life and the delicate pluralism of views in this field. This is also an exigency of social justice: whilst wealthy women can easily circumvent the preclusions met in their countries by seeking access to cross-border reproductive health care, the only option for poor women is often relying on clandestine remedies, that pose their health and even their life at serious risk. Besides “reproductive tourism”, one of the main concerns is the risk of distorted and even eugenic uses of biomedicine, biotechnology and bioengineering, for examples those risks related to human embryo manipulation. Whilst such practice as mitochondrial replacement techniques (MRTs) and gene editing for preventing the onset of some genetic diseases may be fruitful therapeutic solutions, human germline alterations, now viable thanks to such promising techniques as CRISPR-Cas9, are seen as worrisome by the international community as they might jeopardize the essence of the human nature.

The approach, as to the legal area of reference, is based on international law, although some questions of constitutional law are tackled for complementing the view. The methodology adopted primarily relies on a multidisciplinary approach, in particular law and bioethics. However, also the interaction between law and medicine, law and biology, law and philosophy are considered, for the purpose of assessing the various factors that affect the approach to the beginning of life, the protection of the unborn and reproductive rights, especially in the framework of the COE and of the OAS. In this regard, also an integrative approach is adopted, since, the various implications – ethical, medical, biological, philosophical, social, cultural, historical - were considered in their interconnection and holistically. In particular, the research was carried out by primarily analysing the comprehensive understanding of the protection of the unborn and reproductive rights, in order to focus, subsequently, on the human rights systems of reference, in relation to their normative and jurisprudential landscape and possible weaknesses and strengths, for the purpose of advancing viable solutions as judicial cross-fertilization and interpretive paths consistent with the Vienna Convention on the Law of the Treaties.

1. The status of human embryo and reproductive rights at the intersection between science and law

Analysis of the legal perspective concerning prenatal life needs to move from the medical and biological premise, which plays a basic role in the framing of the legal regulation in this field at all levels of governance. Adequate debate between law and science is not always an easy task, especially in those cases where scientific progress has pushed so far to “overcome” the natural rule, which clearly leaves a regulatory gap that needs to be filled. Late Professor Stefano Rodotà, in one of his masterpieces, “Il dirito di avere diritti”, has tackled the role of law in trying to describe and set the appropriate rule where the natural one requires to be somehow replaced. In particular, the role of the legal rule is supposed to be the “artificial reconstruction” of the natural bond that science and technology have extinguished.¹⁰ In fact, as was affirmed by Professor Daniel García San José,¹¹ law usually lags behind science, as the latter is evolving at an impressive rate.

However, the risks of an inappropriate interference of the legislator when reproductive rights are at stake is not a remote possibility, and experience in the field shows this emblematically. Many examples may be recalled: sometimes the legislator criminalizes abortion, as it often happens in Latin America. In other cases, the legislator fails to translate social and scientific instances into an appropriate normative response, as it was interestingly the case of Italian Law No. 40/2004 on assisted reproductive technology (ARTs).¹² In this respect, the role of protection and regional harmonization of human rights Courts is particularly important, and they can also help to provide the appropriate responses for replacing the legal rules that scientific progress may sweep away. In this regard, it seems interesting to recall the metaphor used by Professor Roberto Cippitani in relation to the role of judicial scrutiny in “rejuvenating” anachronistic legal rules, uncapable of keeping the pace with scientific progress.¹³ Such rules are comparable to the protagonist of Scott Fitzgerald’s story “The Curious Case of Benjamin Button”, who was born old and got younger through his life. In a similar fashion, judicial scrutiny can rejuvenate old-fashioned and inadequate legal rules, and adjust them according to scientific evolution. Although Professor Cippitani referred to the impact of the decisions of the Italian Constitutional Court in relation to above-mentioned Law No. 40/2004, his reflection may reasonably be extended to international Courts. Of course, this reflection applies also the field of the protection of the unborn and reproductive rights. ^14,15 Nevertheless, judicial scrutiny of the interplay between law and science is not an easy task in this regard, first of all because the biological debate on the beginning of life is still open. The pluralism of views in the biological and in the legal landscape, especially with regard to the distinct views adopted by the national legal orders, makes the role of human rights Courts delicate. Some considerations on the issue seem necessary from this perspective.

The evolution of prenatal life follows three different stages after the moment of fecundation: the pre-embryonic,¹⁶the embryonic and the foetal phase. After the fecundation,¹⁷ the union of the sperm and the egg triggers the process of the integration of both parents’ DNA into the nucleus of the cell so created, the zygote, which begins to divide into undifferentiated cells that have totipotent nature. It means that each of these cells has the capacity of evolving into a separate embryo,¹⁸ a characteristic that is lost in only three-four days. During this pre-embryonic stage, that is set at the fifth-seventh day, the zygote evolves into the morula¹⁹and, finally, into the blastocyst, which is made up of about one hundred pluripotent cells, each of which has the potential to develop into one of the two hundred types of cells of the human body. For evolving, the blastocyst needs proper environment, that provides it with appropriate nutrition: that means that it needs the implantation²⁰ in the lining of the womb, a process that begins at about day eight²¹ and terminates at about day fourteen-fifteen, when the blastocyst can be finally called embryo.²² At about the fourteenth- fifteenth day two important evolutions occur for the debate on the beginning of life, namely the appearance of the first signs of the nervous system, that is the primitive streak, and the end of the phase during which the twinning process is still possible, since until that moment the embryo can still divide into other embryos or the distinct zygotes may recombine into one.²³ After implantation, the embryo²⁴ continues to develop and, at about eight weeks pregnancy, the foetal stage finally begins, to last until the end of pregnancy.²⁵

In the biological debate, the discussion on some issues is still open: the theory of the pre-embryonic stage, which dates back to 1986, when Dr. McLaren advanced it, has not received generalized acceptance in the scientific community. What is more, possibly even more importantly for our purposes, the scientific community is split with regard to the definition of the moment when life begins, whether at conception or, otherwise, through a progressive process, which would imply growing protection during the evolution from conception to birth.²⁶ Again, another view was advanced, in this case mainly from a philosophical viewpoint, according to which the belonging to the human species is inscribed in the genome and, therefore, conception is the moment to consider for defining the beginning of life.²⁷ The variety of perspectives characterizes also the legal debate on the status of the unborn and whether it has the right to life according to national law, although, in general, domestic legal orders, birth is determinant for the acquisition of personhood²⁸ and the unborn receives only limited protection, for example in the field of succession law.²⁹ Some important attempts to that attempts to define the legal status of the unborn in relation to reproductive rights can be found in the jurisprudence of the Constitutional Courts around the world. In this regard, the principle of human dignity has played a basic role. An emblematic example is offered by the French Conseil Constitutionel,³⁰ when it was called on to express its view on abortion rights in relation to Article 16 of the Code Civil,³¹ which protects life since conception.³² The Court clarified that the Code Civil grants protection to the human embryo and, then, to the foetus in light of the potential of life they embody, which justifies constitutional protection in relation to the principle of human dignity. At the same time, the Conseil Constitutionel also specified that this does not change the fact that legal personhood is acquired at the moment of birth, nor it precludes the protection of the right to abortion of the mother.³³ In a similar vein, with regard to ARTs, the Italian Corte Costituzionale clarified that, as the human embryo enshrines the beginning of life, it deserves constitutional protection on the grounds of Article 2 of the Italian Constitution, which as to be read as granting constitutional relevance to human embryo’s dignity.³⁴ In a similar fashion, in the American continent, Judge Sergio Valls distinguished the right to life and life as a moral good in his Concurring Opinion in the joined cases No. 146/2007 and No. 147/2007 before the Colombian Suprema Corte Constitucional, and clarified that the right to life, as a subjective right, refers to the human person as a rights-bearer, contrarily to “the protection of life in general, which also concerns those who still have not [the capacity to hold and exercise subjective rights], including the unborn, thus it consists in potential life”.³⁵ Interestingly, the Spanish Tribunal Constitucional ,³⁶ that has embraced the conception of the progressive development of life,³⁷ has affirmed that human embryo should enjoy a specific status.³⁸ Although the human embryo, including the embryo in vitro, does not have the right to life, protected under Article 15 of the Spanish Constitution, nor it has legal personhood, it cannot be compared to material things as to its status, therefore the protection granted to constitutionally protected legal goods has to be ensured. This affirmation is all the more significant when one considers that Spanish legislation concerning human embryo research is one of the most advanced in the world and, for instance, allows the use of supernumerary embryos for research purposes.³⁹ In Latin America, a similar view can be found, emblematically, in the jurisprudence of the Corte Constitucional de Colombia, that distinguished life as a “moral good” from life as a “legal good”.⁴⁰ In some countries, the protection of the unborn is enshrined in the Constitutional texts and affects the margin of discretion of the legislator when dealing with reproductive rights: for example the Constitution of Ecuador⁴¹ protects the right to life from conception and the Constitution of Chile⁴² protects the life of the “one who is going to be borne”. Again, the Irish Constitution⁴³ ensures protection to the right to life of the unborn and to “the equal right to life of the mother” and the Constitution of Venezuela⁴⁴provides some conceptualization of parenthood and reproductive rights and protects the rights of the mother since conception.⁴⁵

Moreover, the nature of reproductive rights itself determines some pluralism in their implementation at the domestic level:⁴⁶ in fact, as some scholars have stressed, “conceptually, they are not independent rights, but are drawn from other recognized human rights”.⁴⁷ In particular, reproductive rights, which encompass both the right to reproductive health care and the right to reproductive self-determination,⁴⁸ are drawn from the right to health, the right to physical integrity, the right to private life, the right to autonomy, the right to equality.⁴⁹ In this regard, it is interesting to recall the words of Sofia Gruskin, who held that “human rights provide an international legal framework within which the sexual and reproductive health needs and aspirations of all people can be considered”.⁵⁰

It is in this pluralistic and sensitive scenario that international law and international human rights bodies are called on to provide some shared standard and adequate responses in order to foster a conceptualization and an implementation of reproductive rights respectful of the unborn and capable of keeping the pace with scientific progress. It is a basic goal for ensuring a human rights-consistent scientific evolution.

1. The status of human embryo and reproductive rights in international law

The pluralism of views that emerges from the biological debate and the legal domestic scenario has made and still makes hard the elaboration of shared human rights conceptualization and standards for reproductive rights. However, some common understanding can be found in international hard and soft law, especially thanks to the interpretive efforts of human rights bodies. This is so notwithstanding international law offers scant targeted references. An early attempt of conceptualization of reproductive rights was made in the context of the 1994 International Conference on Population and Development (ICPD), held in the framework of the United Nations Population Fund (UNFPA), also known as the Cairo Conference on Population and Development. The 1994 Cairo Programme of Action,⁵¹ when defining reproductive health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes”, also specified that it implies the capability and freedom to reproduce if and when desired.⁵² This notion also clarified that reproductive rights “rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health”. This statement is particularly important and induced Barbara Crossette, former United Nations Bureau Chief of The New York Times,⁵³ to say that “out of Cairo came no less than a revolution”.⁵⁴ The “revolution” lies in the recognition that “people - women and men, mothers and fathers - not governments were the best judges of how many children to bring into the world, and where and when”.⁵⁵ This statement represents an acknowledgment of the prevalence of individual autonomy over State’s interference in the reproductive field, an interference occasionally consisting in the imposition of an ethics conceived as a State prerogative.⁵⁶ Moreover, consistently with their nature of “non-independent rights”, the 1994 Cairo Programme of Action also clarifies that “[r]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant UN consensus documents”. A similar definition of reproductive rights can be found in the framework of the World Health Organization (WHO) that, in the 2000s, made an important effort to conceptualize reproductive rights through the elaboration of the working definitions of “sexual health” and of the related conceptions of “sex”, “sexuality” and “sexual rights”.⁵⁷ The conception of “sexual rights” elaborated reminds of the 1994 Cairo Programme of Action where it contemplates “the right to decide the number and spacing of one’s children” among the rights “critical for the realization of sexual health”.⁵⁸Both the WHO working definitions and the 1994 Cairo Programme of Action are sources of soft law, thus, they are not binding. What is more, the WHO does not produce such “general normative frameworks of a predominantly philosophical and legal nature” as, for example, the UNESCO.⁵⁹However they are relevant from various viewpoints: primarily, because soft law instruments can promote the development of hard international law. Secondly, because these instruments are indicative of an international convergence of views about reproductive rights.

This convergence of views can be found in the jurisprudence of international human rights bodies, whose basic importance was indirectly recalled in the WHO’s working definition on “sexual rights” where it stressed that “[t]he fulfilment of sexual health is tied to the extent to which human rights are respected, protected and fulfilled”. In the interpretation of their respective reference instruments, human rights bodies have shown clear understanding of the fact that “[s]exual rights embrace certain human rights that are already recognized in international and regional human rights documents and other consensus documents and in national laws”⁶⁰ and their interpretive efforts have concurred to elucidate the content of several reproductive entitlements and the corresponding States’ duties. The importance of their interpretive role is all the more clear when it is observed that international hard law provides very little targeted legal bases expressly embodying reproductive rights. In this respect, an interesting exception is Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the so called “Maputo Protocol”),⁶¹ that expressly protects “health and reproductive rights”. In particular, the provision explicitly embodies the right to fertility, to access to contraception and to receive information about a woman’s own sexual health and the sexual health of her partner, especially whether he is affected by sexually transmitted diseases as HIV and the right to self-protection and to protection from sexually transmitted diseases, besides the right to decide the number and spacing of her children and to have family planning education. The provision also defines States duties to provide “adequate, affordable and accessible health services, including information, education and communication programmes”, which also have to cover all stages of pregnancy and also the post-natal and breastfeeding phase. Importantly, Article 14. 2 (c) provides States’ duty “to protect the reproductive rights of women by authorising medical abortion”. The provision has received some criticism as it does not contemplate that access to abortion is ensured in case of socio-economic reasons and on request. This concern seems reasonable, especially when one considers that in Africa abortion is still generally seen as a taboo.⁶² However, it may also be argued that the relevance of the provision as a targeted legal basis should not be underestimated, as well as the express prioritization of mother’s rights over those of the unborn that it embodies. Moreover, the scope of the provision has to be taken into account in light of the guidance provided by the African Commission on Human and Peoples’ Rights (AfCHPR) that, in its General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa has improved the threshold of protection to be ensured to abortion rights through a combined reading of Article 14(2)(c) of the Maputo Protocol with the right to enjoy the benefits of scientific progress enshrined in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In this vein, the AfCHPR has clarified that “[w] omen see themselves denied the right to benefit from the fruits of this progress as soon as they are denied the means to interrupt an unwanted pregnancy safely, using effective modern services”. At the universal level, the Committee on the Elimination of All Forms of Discrimination against Women so far has provided a similar but not fully corresponding reading of Article 16(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),⁶³ which foresees that women and men have equal “rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”. In this case, the Committee has not defined States’ duties as including the obligation to ensure the right to the benefits of scientific progress but, in its Concluding Observations addressing Costa Rica, it has expressed its concern for the lack of “safest and technologically advanced contraceptive methods” in addition to the lack of safe, legal abortion, and has urged the State to “ensure access to assisted reproductive services,” which includes IVF. Moreover, in in its reports,⁶⁴ the Committee has usually relied on Article 16(e) of the CEDAW for urging States to decriminalize abortion. Interestingly enough, in 2016 the Committee has also praised Argentina for passing legislation that regulated and ensured access to all scientific methods of assisted reproductive technology (ART).⁶⁵

The urge for decriminalization of abortion is a common trait of the jurisprudence of also other universal human rights bodies, which shows a generalized prioritization of the mother’s rights to life, to physical and mental integrity and to private life over the protection of the unborn at the international level. In this sense, the Committee on the Rights of the Child, in its General comment No. 4 (2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child,⁶⁶ has stressed that adequate protection has to be ensured under the Convention on the Rights of the Child (CRC)⁶⁷ in case of early pregnancy, through access to sexual and reproductive health service, including abortion “where it is not against the law”.⁶⁸ Furthermore, the Committee has urged States Parties to decriminalize abortion,⁶⁹ in order to “reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practice”.⁷⁰ This reading of States’ duties under the CRC is not precluded by the statement contained the Preamble of the Convention, according to which the child “needs special safeguards and care, including appropriate legal protection, before as well as after birth”.⁷¹ Indeed, “it was not [intended] to preclude the possibility of an abortion”, as clarified during the travaux préparatoires.⁷² Furthermore, this interpretation is consistent with Article 24 of the CRC⁷³ that “ensure[s] appropriate pre-natal and post-natal health care for mothers”;⁷⁴this is all the more true when one considers that the content of this provision was reversed during the travaux préparatoires, as the original wording prioritized the protection of, the unborn.⁷⁵

In a similar fashion, the Human Rights Committee (HRC), the monitoring body of the International Covenant on Civil and Political Rights (ICCPR),⁷⁶ in its General Comment No. 28 on “The Equality of Rights between Men and Women”,⁷⁷ has clarified that States are bound “to ensure that [women] do not have to undergo life-threatening clandestine abortions”⁷⁸ in relation to the protection of the right to life, enshrined in Article 6 of the Covenant. The fact that the protection of the unborn does not fall within the scope of this provision could already be inferred from the travaux préparatoires of the ICCPR: an amendment that was aimed at incorporating the specification that life begins at conception in Article 6 of the Covenant, which provides that “[e]very human being has the inherent right to life”, was rejected.⁷⁹ Furthermore, in its periodical reports, the HRC has exhorted States to decriminalize abortion and ensure that women can access it in three cases, namely the existence of a risk for their life, rape and incest; the first ground prioritizes the mother’s life over the life of the unborn, whilst the other grounds prioritize mother’s mental health, dignity and autonomy.⁸⁰ Moreover, the HRC has deemed that State’s interference due to the imposition of doctors’ duty to report cases of women who have undergone abortion amounts to a breach of the prohibition of torture or cruel, inhuman or degrading treatment under Article 7 of the Covenant.⁸¹ The Committee had the chance to elucidated further the scope of this provision in relation to reproductive rights when, in the K.L. v. Peru case,⁸² it considered the individual communication of a young mother who was pregnant of an anencephalic baby. In this case, the HRC found that the denial of therapeutic abortion amounted to a breach of Article 7 of the ICCPR, since “[t]he omission on the part of the State in not enabling the author to benefit from a therapeutic abortion was, in the Committee’s view, the cause of the suffering she experienced” ⁸³ and “the right set out in article 7 of the Covenant relates not only to physical pain but also to mental suffering, and that the protection is particularly important in the case of minors”, which made unnecessary to make a finding on Article 6 of the ICCPR.⁸⁴ The refusal to terminate the pregnancy was unjustified, thus the Committee also found a breach of the right to private life protected under Article 17 of the Covenant.⁸⁵ The HRC has extended its urge also to ARTs and, its Concluding Observations about Costa Rica,⁸⁶has called on the State to “do all it can to pursue its stated intention to eliminate the ban on in vitro fertilization and to prevent excessive restrictions from being placed on the exercise of the rights set out in articles 17 and 23 of the Covenant by persons who wish to avail themselves of that technology”.⁸⁷

It is interesting and important to stress that the prioritization of the mother’s rights could already be found in the travaux préparatoires of the Universal Declaration on Human Rights (UDHR), that is considered the archetype of UN human rights instruments and which, moreover, is a basic reference in international human rights law despite it is a resolution and not a treaty. Indeed, during the preparatory works, the rejection of an amendment that required to specify that life begins at conception indicated that where Article 1 of the UDHR provides that “[a]ll human beings are born free and equal in dignity and rights”, it does not mean that the unborn has the rights enshrined in the Declaration.⁸⁸

Conclusively, it seems of fundamental importance to recall that recently General Comment No. 22 (2016)⁸⁹ on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights) of the Committee on Economic, Social and Cultural Rights, the monitoring body of the ICESCR, has defined reproductive rights as part of the core of “the right of everyone to the highest attainable physical and mental health”⁹⁰ and its enjoyment. In particular, it has clarified that “[t]he right to sexual and reproductive health is an integral part of the right to health enshrined in article 12 of the International Covenant on Economic, Social and Cultural Rights”.⁹¹ What is more, the General Comment has incorporated “technological advances and innovations” within the standard of “quality”, when dealing with the 4 A-Scheme that characterizes the Committee’s approach to the elucidation of several entitlements protected under the Covenant, including health. In particular, General Comment No. 22 (2016) clarifies that “[t]he failure or refusal to incorporate technological advances and innovations in the provision of sexual and reproductive health services, such as medication for abortion, assisted reproductive technologies and advances in the treatment of HIV and AIDS, jeopardizes the quality of care”.⁹²

Despite the pluralism that characterizes the scientific and the domestic legal debate at the intersection between the protection of the unborn and reproductive rights, at the international level a shared, core conception can be found as to the scope of abortion and reproductive rights and, generally, the prevalence of the protection of the mother. Also access to ARTs and, in particular, to IVF has achieved generalized understanding and acceptance in this framework. Interestingly, the path to affirm the enjoyment of reproductive rights and the related technologies under the right to enjoy the benefits of scientific progress has been paved at the regional level. That being said, the question now is to assess whether also the ECtHR and the IACtHR have adopted the same approach and, if so, to which extent.

3. Reproductive challenges in the jurisprudence of the ECtHR

The European Court of Human Rights has developed an advanced approach in the field of biolaw which is unique in the international legal scenario and is representative of the nature of the ECHR as a “living instrument”,⁹³ capable of keeping the pace with the challenges posed by evolution in all fields including, of course, scientific progress. In this regard, the fruitful outcomes of the Court’s jurisprudence are clearly helped by the normative framework of the Council of Europe in the field of biolaw,⁹⁴ that represents the most advanced experience at both the universal and regional level, and encompasses such areas as euthanasia, genetics and biomedical research.

Reproductive rights were not neglected. The importance of their protection was clarified by the Council of Europe Commissioner for Human Rights Nils Muižnieks when he said that “[w]omen’s sexual and reproductive health and rights are human rights [and] States must resolutely commit to advancing gender equality in this crucial sphere of life. They have the duty to provide all women with accessible, affordable, good quality sexual and reproductive health care and services”. This view, that is developed from a gender perspective, underlies the “Issue Paper on Women’s sexual and reproductive health and rights” which clearly affirms States’ duty to ensure the enjoyment of reproductive rights and access to abortion. This view is in line with the core conception that can be found at the international level. When dealing with the human embryo and the foetus, the focus of the COE was principally set on the protection in the field of biomedical research, in order to define its possibilities but also its limitations and, in this context, some consideration was given to ARTs and especially to IVF. In this regard, Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes,⁹⁵ called on the Governments of Member States “to forbid any creation of human embryos by fertilisation in vitro for the purposes of research during their life or after death”.⁹⁶ Some more elucidation is offered by Recommendation 1100 (1989) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses in scientific research⁹⁷ where it calls on States “to take steps to guarantee that society is informed simply, accurately and sufficiently of activities involving techniques of assisted fertilisation and related techniques, and more specifically of fertilisation in vitro and the use of human gametes, embryos or foetuses for scientific investigation or other purposes”.⁹⁸ Moreover, the Recommendation provides some clarification in relation to the definition of the status of the embryo, where it states that the human embryo, from the stage of the zygote to that of the foetus, “displays also a progressive differentiation as an organism and none the less maintains a continuous biological and genetic identity”.⁹⁹

Besides the relevant soft law tools, the most interesting references for our purposes can be found in the Convention on Human Rights and Biomedicine (the so called “Oviedo Convention”) and its Additional Protocols, which is unique in the landscape of international law, as it is the only existing hard law instrument in the field of biolaw. Considering the pluralism that characterizes this area, this achievement is a milestone, also because it enshrines a human- rights based approach. The Oviedo Convention does not expressly address the issue of the beginning of life or reproductive rights. Nonetheless, at Article 14 it specifies that “techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided”¹⁰⁰ and, at Article 18, it clarifies that research on human embryo “may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”, and that adequate protection has to be ensured where law allows research on embryos in vitro.¹⁰¹ The ECtHR is not competent to directly apply the Oviedo Convention and its Additional Protocols in its case law; nevertheless, these instruments can provide a helpful support to the interpretation of the ECHR, in line with Article 31(3)(c).

In this respect, the jurisprudence of the Court offers an interesting example of this use of the Oviedo Convention’s system in relation to its attempt to define whether the protection of prenatal life falls within the scope of Article 2 of the ECHR, which provides that “[e]veryone as the right to life”, in the case of Vo v. France.¹⁰² This judgment is a milestone in the Court’s jurisprudence on prenatal life and concerns the unwanted loss of the foetus due to medical negligence. When assessing whether the unborn was included within the notion of “everyone” under Article 2 of the ECHR, the Court underlined that “[t]he potentiality of that being and its capacity to become a person” […] require protection in the name of human dignity [which is ensured in some cases under civil law at the domestic level] without making it a “person” with the “right to life” for the purposes of Article 2”.¹⁰³ In this regard, as a support to its reading, the ECtHR recalled that “[t]he Oviedo Convention on Human Rights and Biomedicine […] is careful not to give a definition of the term “everyone”, and that [t]he same is true of the Additional Protocol on the Prohibition of Cloning Human Beings and the Additional Protocol on Biomedical Research, which do not define the concept of “human being””.¹⁰⁴ The reasons of this approach are set out in the “explanatory report [to the Oviedo Convention which] indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarification for the purposes of the application of that Convention”.¹⁰⁵ This statement recalls a basic feature of the Court’s approach, that is the doctrine of the margin of appreciation.¹⁰⁶

According to this doctrine, the lack of regional consensus on a given question increases States’ margin of appreciation whilst its existence narrows States’ discretionality. It goes without saying that, usually, in the biolegal field and even more in the definition of the beginning of life, States enjoy a wide margin of appreciation, due to the intense pluralism in this field. National ethics may be quite different in this respect. This is why the Court, in the Vo judgment, recognizing that “[a]t European level […] there is no consensus on the nature and status of the embryo and/or foetus”,¹⁰⁷ “[was] convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention”¹⁰⁸ and that “[a]t best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race”.¹⁰⁹ Indeed, the question of the beginning of life is deferred to States’ margin of appreciation notwithstanding the Convention [is] a “living instrument which must be interpreted in the light of present-day conditions”¹¹⁰ and despite the embryo and the foetus “are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation”.¹¹¹ In the Vo case, the ECtHR has adopted an approach of self-restraint¹¹² that hugely characterizes its jurisprudence in the field of the definition of the protection of the unborn and reproductive rights. Thirteen years later, the Court recalled again the conception of the human embryo’s “potentiality of becoming a person” when, in the Parrillo v. Italy case,¹¹³ it was called on to assess the generalized ban posed by Italian Law No. 40/2004 on the donation to scientific research of the cryopreserved embryos obtained from in vitro fertilization for originally reproductive purposes. The Court recognized that “the embryos contain the genetic material of the [mother] and accordingly represent a constituent part of [her] genetic material and biological identity”¹¹⁴ and therefore considered that the applicant’s “choice regarding the fate of her embryos concern[ed] an intimate aspect of her personal life and accordingly relate[d] to her right to self-determination [under] Article 8 of the Convention, from the standpoint of the right to respect for private life”.¹¹⁵ Notwithstanding this, and despite “the sensitive and controversial question of when human life begins as Article 2 of the Convention is not in issue in the […] case”,¹¹⁶ the Court acknowledged 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, in the terms in which this concept is meant by the Government”.¹¹⁷ Then, despite it did not mean to express “any assessment […] as to whether the word “others” extends to human embryos”,¹¹⁸ the Court found a violation of Article 8 of the ECHR since “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 ECHR”.¹¹⁹ In this regard, Italy had not overstepped the – wide¹²⁰ - margin of appreciation granted under these circumstances¹²¹ and, again, regional consensus lacked on the issue “of the donation of embryos not destined for implantation [which] clearly raises “delicate moral and ethical questions”.¹²² Beyond the pluralism of views, however, the Court could exclude that human embryos can be reduced to “possessions” within the meaning of [Article 1 of Protocol No.1 to the Convention on the protection of property]”.¹²³

However, on some occasions the ECtHR has adopted an approach of self- restraint even in cases where a clear regional consensus existed, and under some circumstances States have been allowed a wide margin of appreciation due to the moral vision that was rooted in the country and in the society. The reason for this has to be sought in the role of the Court to provide guidance and harmonization between forty-seven States, whose legal, ethical and social landscape can be very different. The ECtHR, thus, aims to provide some common minimum standards of protection of human rights and, when pursuing this objective, it also tries to avoid a clash with States, as the system is founded on national consent. Therefore, it has to preserved, and wise use of the doctrine of the margin of appreciation is a helpful means.¹²⁴

Abortion is a remarkable example, and it is interesting to consider how the Court usually exercises its scrutiny in this field and provides protection under the procedural limb of private life. In the early Nineties, when the ECtHR was called on to take its decision in the case of Open Door and Dublin Well Woman v. Ireland judgment,¹²⁵ the Court “acknowledge[d] that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life”. ¹²⁶ With regard to Ireland,¹²⁷ the legal, ethical and social implications of abortion are particularly sensitive: in fact, Article 40(3)(3) of the Irish Constitution equalizes the right to life of the unborn and the right to life of the mother and, what is more, abortion is prohibited under criminal law by section 58 of the Offences Against the Person Act 1861, which provides as penalty “penal servitude for life”. The only exceptional case in which abortion is allowed is the existence of a risk for the mother’s life. Nearly twenty years after the Open Door judgment, in the A, B, C v. Ireland case,¹²⁸ the Court reiterated its view. In particular, it clarified that it “[did] not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life […] and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State”.¹²⁹In fact, “[s]ince the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected […] the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother”.¹³⁰ Under similar circumstances, the regional “consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention”.¹³¹ It can be argued that the reason for this approach is that if the ECtHR assumed the task of striking the balance between the conflicting right to life of the unborn and the right to life of the mother, it would have to define the question of the beginning of life. In this regard, the view set out in the Vo case is well-settled, and the Court expressly recalled it in the A, B, C v. Ireland judgment when it held that “the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2”.¹³² Nevertheless, when assessing the alleged violation of applicant C’s right to respect for her private life under Article 8 of the ECHR under the procedural limb, the Court found that a violation had occurred, basically because Ireland had failed to implement the Constitutional ban on abortion through legislation “and [because] more particularly [...] the lack of effective and accessible procedures to establish a right to an abortion under that provision [had generated an uncertainty resulting] in a striking discordance between the theoretical right to a lawful abortion in Ireland on the ground of a relevant risk to a woman’s life and the reality of its practical implementation”.¹³³ This view is settled in the Court’s case law and another example is offered by Tysiac v. Poland case,¹³⁴ where the ECtHR clarified that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.”¹³⁵ In the same vein, in the R.R. v. Poland judgment,¹³⁶ the ECtHR specified that “[w]hile a broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State, once that decision is taken the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention”.¹³⁷ Therefore, although the Court has not come to affirm that States have a conventional a duty to ensure abortion, however, it has recognized that States are under some procedural obligations, in relation to the right to respect for private life, to ensure access to abortion if legislation allows it.

It is interesting to consider the Court’s approach to ARTs and, in particular to IVF, and how the doctrine of the margin of appreciation interrelates with scientific progress. A relevant but also quite disputed example is offered by the case of S.H. and Others v. Austria,¹³⁸ where the Grand Chamber held that the “emerging consensus [about sperm and ova donation for the purposes of in vitro fertilization] is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation of the State”.¹³⁹ The words of the Court raise some perplexity. The reasoning here sounds quite at odds with the Court’s usual and settled view as the ECtHR does not neither highlight the lack of consensus, nor excludes that settled consensus is a decisive factor in light of prevalent moral reasons or due to the specific balance to be stricken between conflicting interests; furthermore, of course, the approach that emerges is far from proactive. The contradiction did not go unnoticed even within the Court itself and Judges Tulkens, Hivelä, Lazarova Trajkovska and Tsotsoria, in their Dissenting Opinion, stressed that “[t]he Court thus takes the unprecedented step of conferring a new dimension on the European consensus and applies a particularly low threshold to it, thus potentially extending the States’ margin of appreciation beyond limits”.¹⁴⁰ However, this is not the only statement in the judgment that raises some perplexity. The Court has observed that “there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses assisted procreation techniques not allowed in Austria and that in the event of a successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents”.¹⁴¹ Arguably, this statement appears at odds with the – praiseworthy – purpose to protect women, especially the most socially and economically vulnerable, from the exploitation and the humiliation to which ova donation might expose them, which Austria included among the reasons for the blanket ban contained in its legislation.¹⁴²It seems hard not to argue that the statement of the Court may cause some discriminatory impact on women’s health. In other words, mainly if not exclusively wealthy couples are likely to afford the costs related to cross- border healthcare, with a consequence that sounds more like “reproductive tourism”.¹⁴³ Access to cross-border healthcare was a basic point also in the Court’s jurisprudence on the “Irish cases” on abortion,¹⁴⁴ where it said that “[h]aving regard to the right to travel abroad lawfully for an abortion with access to appropriate information and medical care in Ireland, the Court [did not consider] that the prohibition in Ireland of abortion for health and well- being reasons, based as it is on the profound moral views of the Irish people as to the nature of life […] and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation”. Indeed, the “impugned prohibition […] struck a fair balance between [the conflicting right] to respect for [the applicants’] private life and the rights invoked on behalf of the unborn”.¹⁴⁵

Thus, the situation is quite different. On the one hand, the Court has never affirmed a right to abortion under the substantial limb of Article 8 of the ECHR because, despite the existing regional consensus, the peculiar domestic moral vision, that is deeply rooted, requires to reconcile the conflicting rights at stake in a specific, consistent way. What is more, the affirmation under the ECHR of the right to abortion under the substantial limb of the right to private life, as stressed above, would require to define the issue of the beginning of life. And, in that respect, the lack of consensus does not allow it. On the other hand, in the S.H. ruling,¹⁴⁶ although the Court had recognized “the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life”, it concluded that no violation had occurred because of the “particularly low threshold” applied to the emerging regional consensus, with its consequences on the width of State’s margin of appreciation. The view of the Court in the S.H. ruling is clearly at odds with its usual approach to scientific progress and reproduction, which is consistent in the other rulings. In the Evans v. the United Kingdom case,¹⁴⁷ in which the ECtHR was called to decide on the withdrawal of parents’ consent as to the implantation of the embryos created in vitro, the Court affirmed that the right to respect for the decision to become a parent in the genetic sense is protected under Article 8 of the ECHR.¹⁴⁸ Nevertheless, in the case, the Court acknowledged that “it cannot be said that there is any consensus as to the stage in IVF treatment when the gamete providers’ consent becomes irrevocable”¹⁴⁹ and consequently “since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one”.¹⁵⁰ The embryos were destined to destruction but, once more, the Court recalled the Vo judgment to reiterate that “the embryos […] do not have a right to life within the meaning of Article 2 of the Convention”.¹⁵¹ The Evans judgment is in line with the Court’s application of the doctrine of the margin of appreciation and with its approach of self-restraint in front of ethical pluralism and strong domestic morality.

It is interesting to notice that the Court has so far tended to recognize and protect the rights related to prenatal and preimplantation diagnosis: this jurisprudence is limited to only two cases, but the approach of the Court is promising. The R.R. v. Poland judgment,¹⁵² the Court found that the denied access to amniocentesis for the mother whose baby was born severely disabled amounted to a violation of Article 3 and Article 8 of the ECHR. In particular, the Strasbourg Court held that the right to private life encompasses access to prenatal genetic testing that, in the case, was the precondition for the applicant to get the necessary information to know whether she met the requirements set for lawful abortion under Polish law. In this regard, the Court clarified that “[t]he right of access to [the information on a person’s health] falling within the ambit of the notion of private life can be said to comprise […] a right to obtain available information on one’s condition [and] during pregnancy the foetus’ condition and health constitute an element of the pregnant woman’s health”. Then, the Court went on and further held that “the effective exercise of [the] right (of access to information about her or his health) is often decisive for the possibility of exercising personal autonomy, also covered by Article 8 of the Convention, by deciding, on the basis of such information, on the future course of events relevant for the individual’s quality of life (e.g. by refusing consent to medical treatment or by requesting a given form of treatment).”¹⁵³ In the judgment, the Court relied on the doctrine of the margin of appreciation, not only when recalling the considerations made in the Vo judgment to stress that the unborn does not have the right to life, but also with reference to the procedural guarantees to be ensure under the procedural limb of private life, when it held that “[if] the State, acting within the limits of the margin of appreciation, […] adopts […] [a] domestic law [that] allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women”.154 One year after the R.R. ruling, in the Costa and Pavan v. Italy judgment,¹⁵⁵ the Court basically relied on proportionality when it held that the applicants, who were both healthy carrier of a genetic disease, had a right to access to prenatal genetic diagnosis under Article 8 of the ECHR in the context of in vitro fertilization. The Court acknowledged that “the question of access to PGD raises sensitive moral and ethical questions” but it also recognized that “the solutions reached by the legislature are not beyond the scrutiny of the Court”,¹⁵⁶ in so far as its task was “to verify the proportionality of the measure in question in the light of the fact that termination of pregnancy on medical grounds is an option for the applicants”.¹⁵⁷ The Second Section adopted a pervasive view that, nevertheless, does not clash with the fact that the “Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of assisted procreation, observing in particular that the use of in vitro fertilisation techniques raised sensitive moral and ethical questions [in an area that was constantly evolving]”, as stressed in the S.H. ruling.¹⁵⁸ In the Costa and Pavan case, the ECtHR found that Italian legislation pursued a legitimate aim under Article 8(2) of the ECHR, namely “protecting morals and the rights and freedoms of others”.¹⁵⁹ The Court carried out a careful scrutiny of proportionality that nevertheless included considerations connected to the doctrine of the margin of appreciation when the Court recalled that, out of the thirty-two States whose legislation was analysed, only Italy, Switzerland and Austria did not allow pre-implantation diagnosis. In light of the test of proportionality, the Court found that “[t]he consequences of [Italian] legislation for the right to respect for the applicants’ private and family life are self-evident. In order to protect their right to have a child unaffected by the disease of which they are healthy carriers, the only possibility available to them is to start a pregnancy by natural means and then terminate it if the prenatal test shows that the foetus is unhealthy”.¹⁶⁰ Abortion is evidently a more grievous alternative if compared to PGD, when the sufficient reasons for State’s interference are considered according to the second level of the proportionality test.¹⁶¹ In this regard, the “standard of the sufficient reasons” requires that the State adopt the less grievous mean for pursuing the legitimate aim. What is more, the view of the Court offered important clarification also in relation to possible concerns of eugenics, which the Italian State had expressed when it held that the applicants were alleging a violation of their right to have an healthy child.¹⁶² However, the Court dismissed such allegation, clarifying that “the right relied on by the applicants is confined to the possibility of using ART and subsequently PGD for the purposes of conceiving a child unaffected by cystic fibrosis” ¹⁶³ since “PGD cannot exclude other factors capable of compromising the future child’s health”.¹⁶⁴ The Court recalled Article 12 of the Oviedo Convention, which allows predictive genetic tests and the corresponding Paragraph 83 of the Explanatory Report as relevant international law but, then, it did not incorporated these references in its legal reasoning. Possibly, incorporation as a support to the interpretation of the ECHR may have enhanced the Court’s arguments, with special reference to Paragraph 83 where it clarifies that “Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child”. In fact, although Italy has signed but not yet ratified the Oviedo Convention, the State is under an obligation not to defeat the object and the purpose of the treaty pursuant to Article 18 of the VCLT. What is more, some further support to accessibility to IVF might have been interestingly advanced by recalling Article 15 of the ICESCR, which protects the right to benefit from scientific progress, this time in line with Article 31(3)(c) of the VCLT, as Italy is Party to the Covenant. Viability of a similar approach was suggested by the Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria who, in their Dissenting Opinion in the S.H. case have recalled Article 12 and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), on the right to health and on the right to science to stress the need to ensure access to IVF, since it is not “a question of choice between different techniques but, more fundamentally, a restriction on access to heterologous in vitro fertilisation constituting denial of access to available treatment”.¹⁶⁵ However, so far, the Court has not adopted this kind of approach in its case law, showing a tendency to be more self-referential than other human rights bodies. Therefore, so far, the steps ahead towards the definition of individual rights and corresponding States’ obligations in relation to access to scientific progress in the reproductive field have basically been the result of the use of its usual decisional paths, that means relying on the doctrine of the margin of appreciation and the test of proportionality. In this regard, thus, we may conclude that the common core of the conception of the reproductive rights to some extent can be found in the jurisprudence of Strasbourg Court. Whilst, on the one hand, the Court’s self- restraint in the field of abortion rights may be plausible, however it is to wish that the “backward step”¹⁶⁶ taken in the S.H. v. Austria judgment, with that disputable reading of regional consensus and its possible distorted effects in practice, remains an isolated case.

4. The evolutionary approach to reproductive rights in the jurisprudence of the IACtHR

On the other side of the Atlantic Ocean, the role of the Inter-American Court of Human Rights has been of basic importance for the promotion of reproductive rights and their protection. The regional framework that the Court has to deal with is quite different from the European one: on the one hand, national realities are more homogeneous, as the twenty-five countries that are Parties to the Convention - only twenty-one of which have accepted the competence of the Court - are all Latin American States. In practice, these States have a common cultural core and they have been through a process of democratization during the Nineties in light of which they now can be defined as “new democracies”.¹⁶⁷ On the other hand, the regional framework on reproductive rights is more delicate and sometimes controversial than the European scenario. Latin America is currently undergoing an important process in relation to abortion rights: in 2017, Chile has legalized abortion when mother’s life is in danger, when the pregnancy is the result of rape and when the foetus is not viable; moreover, it is very recent news that the Argentinian Chamber of Deputies has passed a bill that provides legalization of elective abortion within the fourteenth week of pregnancy, and even beyond this term in case of danger to mother’s life, rape and in cases the foetus suffers severe conditions incompatible with life outside the womb. Brazil, otherwise, is facing an opposite situation, as some restrictive trends seem to be progressively gaining ground in the country, where the Supreme Court is assessing the possibility to criminalize abortion, which now is allowed in the country in case the mother’s life endangered, when the pregnancy is the result of rape and when the foetus is affected anencephaly. States’ approach is usually restrictive: Dominican Republic, El Salvador and Nicaragua are three emblematic examples, as in the first two countries abortion is banned except in case the mother’s life is endangered, whilst in Nicaragua the ban is total and allows no exceptions.¹⁶⁸ Otherwise, ARTs, including IVF have found generalized acceptance in Latin America, with the only exception of Costa Rica: it is emblematic that in 1990, the Latin American Registry of Assisted Reproduction (RLA) was established as the first multinational and regional registry of assisted reproductive technology.¹⁶⁹

The Inter-American Court of Human Rights has not had as many chances as the Strasbourg Court to deal with reproductive rights; nevertheless, its approach stands out for being proactive and for having effectively promoted their protection in the region. The relevant decisions of the Court came more than thirty years after the Inter-American Commission of Human Rights (IACHR) was called on to take a decision in the field of abortion rights for the first time in the Inter-American human rights system in the early Eighties, in the Baby Boy v. the United States case.¹⁷⁰ Called on to consider the issue of the beginning of life under circumstances that concerned a belated elective abortion, ¹⁷¹ the Commission relied on the American Declaration of the Rights and Duties of Men (ADRDM),¹⁷² as the United States have signed but not ratified the ACHR. However, some reference was also made to the Convention, since the parties had specifically vested the Commission with assessing whether it could be considered as a support to the interpretation of the State’s duties under the Declaration. The interpretive task in which the Commission engaged was delicate, as emerges when the content of the relevant provisions is taken into consideration: Article 1 of the ADRDM provides that “[e]very human being has the right to life” and Article 4(1) of the ACHR enshrines a highly disputed provision, where it foresees that “[e]very person has the right to have his life respected. This right shall be protected […], in general,¹⁷³ from the moment of conception”. The Commission based its interpretation on the travaux préparatoires of both instruments:¹⁷⁴ with regard to the ADRDM, the formulation of the provision contained in the draft submitted to the Juridical Committee included an explicit reference to “the right to life [that] extends to the right to life from the moment of conception”. This reference was then erased from the text, and instead of “every person” now the provision refers to “every human being”. This was considered as the clear intention to exclude prenatal life from the scope of the provision, as the view among the negotiating States was divergent. The debate during the travaux préparatoires of the ACHR evolved in a similar fashion, as States still had different views and, above all, different legislations on abortion.¹⁷⁵ However, the reference to the “conception” was kept in the text, and the locution “in general” was incorporated for the purpose of reconciliating the distinct opinions. ¹⁷⁶ Consistently with this perspective, the Commission came to the conclusion that the ADRDM had not incorporated the notion that the right to life exists from the moment of conception, as “the conference faced this question but chose not to adopt the language that would clearly have stated this principle”.¹⁷⁷ Thus, the IACHR found no violation of Article I of the ADRDM¹⁷⁸ and, as to Article 4(1) of the ACHR, the Commission held that “the legal implications of the clause “in general, from the moment of conception” are substantially different from the shorter clause “from the moment of conception”.¹⁷⁹ Nevertheless, this did not affect the case, as the United States had not ratified the Convention and “it would be impossible to impose upon [them] an international obligation based upon a treaty that [they] had not duly accepted or ratified”.¹⁸⁰ The view expressed by the Commission is clear: the unborn does not have the right to life.

When the issue was brought before the Court, the results achieved were different from several viewpoints: the IACtHR did not affirm that the unborn has the right to life. Nonetheless, it recognized that some protection that is due, dependent on the progressive conception of its development that the Court adopts; therefore, the balance has to be stricken under the specific circumstances between the rights of the unborn and the rights of the mother. These outcomes were not achieved all at once in the case law of the Court, but followed some interesting steps: previously, on some occasions, the Court had addressed the unborn using the words “children”,¹⁸¹ “minors”,¹⁸² “babies”, as it was the case for its judgments Miguel Castro-Castro Prison v. Peru,¹⁸³Goiburú et al. v. Paraguay¹⁸⁴ and Gómez-Paquiyauri Brothers v. Peru,¹⁸⁵ often recognizing a compensation for the consequences affecting the unborn and that were caused by the physical suffering, the distress or the ailment suffered by the mothers under the peculiar circumstances of each case. The case of Sawhoyamaxa Indigenous Community v. Paraguay¹⁸⁶ is arguably the most interesting example for our purposes, as the Court affirmed that “States must […] adopt special measures to secure women, especially during pregnancy, delivery and lactation, access to adequate medical care services”, in relation to State duty to adopt the special measure under Article 19 of the Convention that were necessary to protect the – born - children’s life.¹⁸⁷ However, in all these judgments, the protection ensured by the Court addressed the unborn indirectly, as a result of the protection granted to the right to physical and psychic integrity or the right to health of the mother and her right to access to adequate medical services during pregnancy and after the child’s birth. This case law is interesting for understanding how the system of the Convention has tackled the protection of maternity. Nevertheless, the status of the unborn in that line of jurisprudence is not directly tackled and defined, although some recognition and protection, as stressed, is indirectly granted. The first opportunity that the IACtHR had to expressly grapple with the status of the unborn was the case of the Xákmok Kásek Indigenous Community v. Paraguay,¹⁸⁸ but it skirted the question.

The case was basically focused on the protection of the ancestral land of the Xákmok Kásek Community, as the deprivation of their land had also caused the deprivation of the necessary means for living. The Court found a breach of the right to property of the applicants and also found that Paraguay had not adopted the necessary measures for protecting their right to life. Among the victims of the precarious living conditions, two nascituri were mentioned. Nonetheless, the Court held that “the representatives and the Commission have not presented arguments regarding the alleged violation of the right to life of the “unborn””, thus it “lack[ed] facts on which to form an opinion as to the State’s responsibility in these cases”.¹⁸⁹ However, since the causal link between the precarious living conditions of the Community and the deaths of the unborn children had been ascertained, it was reasonably stressed in scholarship that the Court’s argument seems to clash with the principle iuva novit curia.¹⁹⁰ Otherwise, when two years later the IACtHR was called upon to assess whether a right to access to IVF was protected under the ACHR in the Artavia Murillo v. Costa Rica case,¹⁹¹ it could not and did not skirt the issue of the statusof the unborn again. The Court engaged in a careful interpretation of Articles 4(1), 11, 17 of the ACHR when assessing the compatibility with ACHR of the decision of Constitutional Chamber of the Supreme Court of Costa Rica which, consistently with an absolute conception of the right to life from conception, had annulled the Executive Decree No. 24029-S of 1995, of the Ministry of Health of Costa Rica,¹⁹² that allowed IVF for married couples and regulated it. The IACtHR, differently from the Strasbourg Court, made no use of the doctrine of the margin of appreciation, on which actually the IACtHR rarely relies in its case law and which was invoked by Costa Rica, when it claimed that no regional consensus existed on IVF and, thus, the matter was deferred to the discretional evaluation of the domestic legislator. Although some reference to regional consensus emerged in the Court’s reasoning when dealing with the protection of the right to life with respect to IVF, as the technique is generally allowed in Latin America, nevertheless the Court’s scrutiny was basically focused on proportionality.

Primarily, the interpretive efforts of the Court focused on the definition of the scope of application of Article 4(1) of the ACHR, by recalling thoroughly various techniques of interpretation.¹⁹³ The Court relied on the method of the most favourable interpretation and highlighted that the aim of the wording of Article 4(1) is to allow appropriate balance between conflicting rights and interests, which excludes an absolute protection of the embryo that annuls other rights.¹⁹⁴ However, at Paragraph 264 the IACtHR clarifies that the different methods of interpretation used “have led to similar results according to which the embryo cannot be understood to be a person for the purposes of Article 4(1) of the American Convention”. Then, having also retraced the scientific debate on the beginning of life and the multidisciplinary approaches to the issue, the Court goes straight to the hub coming to the conclusion “that “conception” in the sense of Article 4(1) occurs at the moment when the embryo becomes implanted in the uterus, which explains why, before this event, Article 4 of the Convention would not be applicable”. Moreover, embracing a progressive view on the development of the human embryo, the Court clarified that “it can be concluded from “the words “in general” that the protection of the right to life under [Article 4(1)] is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible”.¹⁹⁵ The consequences of this view are of outstanding importance, as this reading of Article 4 of the ACHR paves the way for accommodating scientific progress within the human rights framework of the Convention. Of course, some criticism addressed the decision from the opposite viewpoint. It was said that the ruling had prioritized the interests of biotechnology over the protection of early embryos, at odds with the Convention’s wording that makes explicit reference to “conception”.¹⁹⁶ In this regard, in support of the ruling, it could be argued that, however, such reading is not clearly at odds with an evolutive interpretation of the ACHR.¹⁹⁷ The Court’s favour for scientific progress emerges also from the subsequent passages of the ruling, a with the results it has achieved comprehensively, as is analysed below.

After defining the scope of application of Article 4(1) of the Convention, the Court carried out a thorough test of proportionality when assessing Costa Rica’s interference with the rights at stake in the case, namely personal integrity, personal liberty, private life, intimacy, reproductive autonomy, access to reproductive health services and the right to found a family, protected under Articles 5(1), 7, 11(2) and 17(2) of the ACHR. The Court provided an accurate and interesting definition of the scope and the content of the right to private life and its interconnection with the other entitlements involved.¹⁹⁸ Similarly to the Strasbourg Court, the IACtHR has clarified that “the decision of whether or not to become a parent is part of the right to private life and includes, in this case, the decision of whether or not to become a mother or father in the genetic or biological sense”.¹⁹⁹ More in detail, the Court clarified that the case “addresse[d] a particular combination of different aspects of private life that are related to the right to found a family [that, according to the HRC, encompasses the possibility of procreating],²⁰⁰ the right to physical and mental integrity and, specifically, the reproductive rights of the individual.”²⁰¹ In this regard, the Court specified that the right to private life encompasses reproductive autonomy that, in light of Article 16(e) of the Convention for the Elimination of All Forms of Discrimination against Women, includes the couple’s decision to become genetic parents,²⁰² and “access to reproductive health services, which includes the right to have access to the medical technology necessary to exercise this right.”²⁰³ Recognizing the “connection between personal autonomy, reproductive freedom, and physical and mental integrity”,²⁰⁴ the IACtHR affirmed that “the rights to private life and to personal integrity are also directly and immediately linked to health care [and] [t]he lack of legal safeguards that take reproductive health into consideration can result in a serious impairment of the right to reproductive autonomy and freedom”.²⁰⁵ In this respect, through its purposeful approach that recalls the relevant international reference instruments and jurisprudence, the Court incorporated in its legal reasoning the generalized understanding of sexual health that is shared at the international level, and framed it within the framework of the ACHR, by stating that “[t]he right to reproductive health entails the rights of men and women to be informed and to have free choice of and access to methods to regulate fertility, that are safe, effective, easily accessible and acceptable”, which also includes access to IVF.²⁰⁶ This legal reasoning led the Court to specify that “the right to private life and reproductive freedom is related to the right to have access to the medical technology necessary to exercise that right” and, differently from the Strasbourg Court, the IACtHR affirmed and protected in the case “the right to enjoy the benefits of scientific progress [that] has been internationally recognized”.²⁰⁷ Curiously enough, the Court recalled Article 15 of the ICESCR in a footnote²⁰⁸ and did not expressly incorporate it in the text of the judgement as could be expected in line with its usual approach considered above. Otherwise, in Artavia Murillo judgment, when affirming “[t]he right to have access to scientific progress in order to exercise reproductive autonomy and the possibility to found a family”,²⁰⁹ the Court basically elucidated its scope by making reference to the Inter-American system, which provides references of basic importance and helped the Court to give a proactive reading of this right. In particular, the Court relied on Articles 11(2) and 17(2) in light of the principle pro persona²¹⁰ pursuant to Article 29(b) of the ACHR, in connection with Article XIII of the ADRDM and Article 14(1)(b) of the Protocol of San Salvador.²¹¹ As a result, the Court held that the right under consideration “gives rise to the right to have access to the best health care services in assisted reproduction technology, and, consequently, the prohibition of disproportionate and unnecessary restrictions, de iure or de facto, to exercise the reproductive decisions that correspond to each individual”.²¹² In relation to this assessment, the Court scrutinized the proportionality of the interference caused by Costa Rica, by analysing thoroughly the impact of the absolute protection granted to the right to life of the human embryo and finding that “one of the direct interferences in private life is related to the fact that the Constitutional Chamber’s decision prevented the couples from deciding whether or not they wished to submit to this treatment to have children in Costa Rica”.²¹³ In fact, the IACtHR considered that having to look for IVF abroad as the only viable route for accessing the treatment was unfair;²¹⁴ this is very a different view from the one expressed by the ECtHR in the S.H. v. Austria judgment with reference to accessibility to cross-border healthcare. Moreover, IACtHR found that the interference of Costa Rica had a disproportionate impact and caused an indirect discrimination on the grounds of disability, gender and financial conditions.²¹⁵ Finally, the Court scrutinized the proportionality of the State’s interference in relation to the embryonic loss in IVF and, in this regard, it considered that since “embryonic loss exists in both natural pregnancy and in […] other reproduction techniques permitted in Costa Rica, the protection of the embryo sought by banning IVF has a very limited and moderate scope”.²¹⁶

It is in light of all these considerations that the IACtHR came to the conclusion that the “Constitutional Chamber based itself on an absolute protection of the embryo that, by failing to weigh up or take into account the other competing rights, involved an arbitrary and excessive interference in private and family life that makes this interference disproportionate [and] moreover, the interference had discriminatory effects”.²¹⁷ Having said that, the Court explicitly held that it was not taking into consideration State’s arguments about the margin of appreciation although, as anticipated above, in the ruling, some reference to consensus emerged in its legal reasoning, when it underline that Costa Rica was the only country that prohibits IVF in the region and, then, does not practice it.²¹⁸

One year after the Artavia Murillo judgment, in 2013, the IACtHR was called upon to express its view in the case of Beatriz; what emerges, again, from the Court’s legal reasoning is that the protection of the unborn is not absolute and the balance has to be properly stricken among the safeguarding of the nasciturus and the conflicting rights of the mother at stake. In the Beatriz case, the focus was set on the foetus and the Court had to decide on a provisional measure concerning abortion rights in El Salvador, a country that contemplates one of the strictest regulations in the region in this field. Criminalization of abortion is particularly severe in the country, as women are exposed to up to fifty-years imprisonment in case the facts are legally qualified as aggravated murder. The ban on abortion is outright in the country and the applicant, who was named “Beatriz” for protecting her privacy, had a very delicate situation: she suffered from several severe autoimmune diseases, namely Systemic Lupus Erythematosus aggravated with lupus nephritis and rheumatoid arthritis, and the pregnancy posed a threat to her physical and mental integrity and, eventually, to her life. ²¹⁹ What is more, several ultrasounds had shown that the foetus was affected by anencephaly and had very little chances of survival after birth.

Notwithstanding this and despite the IACHR had requested that El Salvador “adopt[ed] the necessary measures to implement the treatment recommended by the Medical Committee of the National Hospital […] aiming to protect the life, personal integrity and health of [Beatriz]”²²⁰, the Salvadoran Supreme Court considered that the threat to the life of Beatriz was not “actual or imminent”. Then, according to the test of proportionality it carried out, it concluded that right to life of the mother and the right to life of the foetus deserved equal protection and did not allow the termination of pregnancy under those circumstances.²²¹ In its resolution on the provisional measure, the IACtHR, requested to act by the Commission, under the circumstances of the case prioritized the right to life and the right to physical and mental integrity of the mother over the alleged right to life of the foetus. ²²²

The Court found that all the requirements for granting the provisional measure, namely extreme seriousness, urgency and the risk of an irreparable harm, were met: first of all “Beatriz” was in need of constant medical treatment and the aggressive medications she took posed a risk to her health and, definitely, to her life; her health conditions might have become critical unpredictably; finally, pregnancy and the condition of anencephaly that affected the foetus might exacerbate her health conditions and, moreover, she was undergoing such psychological suffering that she had begun to show some psychosomatic symptomatology.²²³ Therefore, the IACtHR, conclusively, “require[d] that the State of El Salvador adopted and guaranteed, with urgency, all the necessary and effective measures so that the medical staff treating Mrs. B. can adopt, without any interference, the medical measures considered appropriate and convenient for ensuring due protection to the rights enshrined in Articles 4 and 5 of the American Convention and, in this way, to prevent irreparable harm to the rights to life and physical integrity and health of Mrs. B”.²²⁴ The resolution confirmed the view expressed by the Court in the Artavia Murillo judgment, namely that the protection of the unborn is progressive and gradual. It means that under distinct circumstances the Court may strike a different balance between the conflicting interests at stake and prioritize the protection of the nasciturus.²²⁵ In scholarship, it was suggested that the Court’s view in the Artavia Murillo judgment and in the resolution on the case of Beatriz was in line the conception that the Court has embraced that only persons are entitled the rights enshrined in the Constitutions.²²⁶ The human embryo or the foetus would not be included in this notion and, therefore, they would enjoy a protection that is defined according to the potential of life they enshrine.

From a comprehensive viewpoint, the outcome is that the IACtHR has played a basic role for the affirmation and the protection of reproductive rights in the region and has adopted a proactive reading capable of embracing the right to enjoy advanced reproductive techniques and biotechnology, through a proactive reading of States’ duties and individuals’ rights under the system of the ACHR and the Inter-American human rights instruments. In this regard, the Court has enhanced the authoritativeness of the protection it has ensured and promoted,²²⁷ through incorporation in its legal reasoning and in the definitions provided of the internationally shared views. The incorporation of the internationally shared understanding of sexual health and reproductive rights is a paradigmatic example. This approach upholds the Court’s legitimation²²⁸ in its relationship with States Parties, which is particularly important, for example, to establish a balanced dialogue with national courts as to their role in the conventional scrutiny since, as well as the legislator, they have to incorporate into domestic jurisprudence the standard elaborated by the IACtHR in its case law.²²⁹ A cooperative approach is fundamental for preventing a clash between the two levels of jurisdiction, that might the authoritativeness of the decisions of the IACtHR. The sensitiveness of the situation has clearly emerged in both Artavia Murillo and Beatriz cases. In this regard it is interesting to recall that some Latin American States have incorporated, in their Constitutions, a clause called “bloque de constitucionalidad”.²³⁰ According to this kind of clauses, which were initially incorporated in the European Constitutions of Portugal and Spain and which can be found, for instance, in the Latin American Constitutions of Argentina, Bolivia, Colombia, Mexico and Venezuela,²³¹ international human rights law is constitutionalized, that means it is incorporated within the national legal order with constitutional rank.²³² This entails that national institutions, either political or jurisdictional, should foster the convergence of international human rights law and constitutional law, easing the correspondence between their scope and content.²³³ That being said, it should be stressed that there is also another relevant consequence related to the bloque de constitucionalidad, namely the prevalence of the rules of international human rights law when it provides a higher threshold of protection, consistently with the principle pro persona.²³⁴ As the Court’s ruling in the Artavia Murillo case demonstrates, this principle may be fruitfully used for paving the way for generalized enjoyment of reproductive rights, also through access to the most advanced achievements of scientific progress. For sure, there is still a long way to go, although the “wind of change” blowing on Latin America actually seems to be promising for the success of the process promoted in the Inter-American jurisprudence.

5. A comparison between the jurisprudence of the IACtHR and of the ECtHR and some proposals for judicial dialogue and enhancement of the protection ensured

The assessment carried out in the previous paragraphs shows that a core conception of reproductive rights and sexual and reproductive health has emerged at the international level and the ECtHR and the IACtHR have incorporated this view in their jurisprudence, although with some differences and to a distinct extent. In the case law of the IACtHR, the proactive approach embraced and thoroughly underpinned by reference to the relevant international instruments and jurisprudence has adopted an advanced reading of reproductive rights, capable of promoting the process of rejuvenation of human rights law in order to keep the pace with scientific progress. Otherwise, the ECtHR has a more evident tendency to self-restrain, although some important results were achieved. The R.R. v. Poland and the Costa and Pavan v. Italy judgments are effective examples.

Therefore, we could wonder what we may expect from the evolution of the case law of the two Courts and whether judicial dialogue might be a fruitful route to take. In this respect, primarily, some considerations should be made on the reasons for the differences in their approach, in order to assess how the existing limitations but also the viable paths to enhanced and scientifically advanced protection of reproductive rights in international law may interact with the Court’s views.

First off, the IACtHR is generally more proactive than the Strasbourg Court and also less self-referential. The reason has to be sought in the process of affirmation of the IACtHR, that had to struggle more than the ECtHR in this respect: reference to the relevant hard and soft law instruments of international law and to international jurisprudence helped the Court to provide more authoritativeness to its decisions. Additionally, it has helped to increase the threshold of protection, as the San José Court recalls to the relevant international references aiming to ensure the highest standards of protection possible, according to the more favourable protection clause, in a way which was effectively defined in scholarship as “cherry picking”.²³⁵ Furthermore, the IACtHR can rely on a wider catalogue of human rights enshrined in the ACHR, that can offer useful legal bases when dealing with reproductive rights.

In this regard, in the Artavia Murillo judgment, the Court has stressed that “unlike the European Convention on Human Rights, which only protects the right to family life under Article 8 […] the American Convention contains two articles that protect family life in a complementary manner”, namely Article 11(2) and Article 17 of the Convention that protect “the rights of the family” that the family’s right to protection entails, among other obligations, facilitating, in the broadest possible terms, the development and strength of the family unit”. However, in this respect, it should be considered that the ECHR, besides Article 8, contains also Article 12, that protects the right to marry and to found a family. Nevertheless, this provision was not recalled by the Court in relation to reproductive rights, even when it might have helped to better define and underpin the human rights framing of the issues considered, for example, in the Costa and Pavan and Parrillo rulings. In that regard, it should be taken into account that Article 12 protects the right to marry and to found a family “according to the national laws governing [their] exercise” but does not contain additionally a similar statement as the ACHR, which adds “insofar as such conditions do not affect the principle of non-discrimination”. However, some guidance for defining better the scope of Article 12 of the ECHR and how it interrelated with national laws, is provided by the Court’s case law in the field of same-sex couples marriage. For example, in the case of Schalk and Kopf v. Austria,²³⁶ the Strasbourg Court had the chance to restate, as it had often done in its established case law, that “[although t]he exercise of this right […] is “subject to the national laws of the Contracting States”, […] the limitations thereby introduced must not restrict or reduce [it] in such a way or to such an extent that the very essence of the right is impaired”, but usually has allowed a wide margin of appreciation.

Moreover, the catalogue of human rights protected in the Inter- American system is complemented by the Protocol of San Salvador that contains a specific legal basis concerning the right to enjoy the benefits of scientific progress, namely Article 14 on the right to the benefits of culture, that has paved the way to the affirmation of access to reproductive technology in the Artavia Murillo judgment, where the Court had affirmed the “right to have access to the medical technology necessary to exercise th[e] right [to private life and to reproductive freedom]”.²³⁷ Although not all States Parties to the ACHR have signed and ratified the Protocol of San Salvador, Article XIII of the ADRDM²³⁸ would provide a legal basis as well with regard to the right to the benefits of culture, as it foresees the right “to participate in the benefits that result from intellectual progress, especially scientific discoveries”. In this regard, the Strasbourg Court cannot rely on a similar targeted legal basis in the ECHR system, which makes its interpretive efforts harder.

Furthermore, as anticipated in the previous paragraph, the conception of the right to life adopted in the Inter-American jurisprudence, has played an important role for helping the Court to affirm access to reproductive technologies and the enjoyment of reproductive rights, including abortion, under the ACHR system. Indeed, by affirming that the right to life of the unborn is not absolute and that it deserves progressive protection, the Court has tackled the issue of the beginning of life in a way that attempts to provide a balanced protection to both the unborn and the conflicting reproductive rights, and that allows a case by case scrutiny. In this respect, the standard of proportionality has allowed a wider assessment to the Court: although in the Artavia Murillo case, possibly, the application of the margin of appreciation would have led to similar conclusions due to the existence of a regional consensus on IVF, the same can hardly be said in relation to the scrutiny on abortion rights, as they do not find the same acceptance regionally. Nevertheless, the results achieved by the Strasbourg Court should not be underestimated. Basically, because the Court has been capable of making the guarantees enshrined in the Convention effective by turning a treaty adopted in the 1950 into a “living instrument” capable of encompassing biorights. It is clearly praiseworthy. The Court has succeeded to include within the scope of the ECHR genetic parenthood and access to PGD and prenatal diagnosis. It has succeeded to provide at least procedural protection to abortion rights but, nonetheless, the variety of regional views on the beginning of life precludes any scrutiny on the issue substantially. In this regard, the slash criticism raised by the decision issued by the other European major Court, the Court of Justice of the European Union (ECJ) in the Brüstle case,²³⁹ in relation to Directive 98/44/EC²⁴⁰ and human embryo research, confirms how pluralism is hard to tackle in Europe. This helps to clarify why the doctrine of the margin of appreciation has played a basic role in the jurisprudence of the Court,²⁴¹ in general and especially in the field of biorights. Indeed, it has helped to establish a balanced relationship between the ECtHR and States Parties, although the Court has not needed to struggle as much as the Inter-American Court for its affirmation in its regional framework. However, in the last years, some countries have shown some reluctance and have demonstrated to be unwilling to comply with the Court’s judgments.²⁴²

The Strasbourg Court is aware of the pressure that is put on it, even more when it comes to scrutinizing bioethically sensitive cases and it has emerged in its case law. In fact, the Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, in their Joint Dissenting Opinion in the case of S.H. v. Austria, in relation to the consideration given by the Court to the consensus on gamete donation for the purpose of IVF, have highlighted that “[t]he current climate is probably conducive to such a backward step”. Moreover, the Judges warned about the risks, as the fact that “[t]he differences in the Court’s approach to the determinative value of the European consensus and a somewhat lax approach to the objective indicia used to determine consensus are pushed to their limit here, engendering great legal uncertainty”.²⁴³

Therefore, also for preventing such risks in the Strasbourg jurisprudence, it is interesting to consider whether and to which extent the protection of reproductive rights may benefit from judicial dialogue between the results achieved by the ECtHR and the IACtHR. Judicial dialogue, or cross- fertilization, would also arguably benefit the case law of the two Court by curbing fragmentation: this seems particularly important in such a field as reproductive rights that is required to face transboundary and global challenges and where reproductive tourism²⁴⁴ poses serious threats to social justice, since only wealthy couples have the chance to travel for accessing to reproductive service available abroad. And, in this respect, it is compelling to “assum[e] justice as fairness in the distribution of the benefits and burdens of public policy in a pluralistic society”,²⁴⁵ and human rights, including reproductive rights, implementation at the domestic level can help.

In light of the comparison between the results achieved by the two Courts, it may be argued that, as a primary step, the Strasbourg Court may benefit from some reference to the jurisprudence of the IACtHR through judicial dialogue. Despite its traditional self-referential approach, the Strasbourg Court has already begun to adopt a renewed perspective and to progressively make increasing reference to the San José case law. This trend began in the 2000s, when the ECtHR had to face new challenges due to the renewed composition of States Parties begun in the Nineties, and the experience of the IACtHR in the field of some gross violations turned out to be a precious reference.²⁴⁶ Despite in general the ECtHR has developed a wider and established experience in the field of biolaw, some reference to the views elaborated in San José would help to enhance the guarantees ensured in the field of reproductive rights in the ECHR system. Curiously enough, in this regard, the IACtHR has been capable of valorising more the nature of the ACHR as a living instrument, in line with that “idem sentire”²⁴⁷ that it shares with the Strasbourg Court in this respect.

In particular, the Strasbourg Court would benefit from reference to the proactive and less self-referential approach of the San José Court and its capacity to recall the relevant international sources of both hard and soft law in order to enhance the protection of the conventional rights.²⁴⁸ This would be beneficial for the Strasbourg Court for improving the incorporation in its case law of the generally recognized core conception of sexual and reproductive health and reproductive rights, through an enhanced reading of the rights protected under the ECHR, primarily Article 8. In this regard, the Artavia Murillo judgment is a paradigmatic example, and reference would be particularly helpful with regard to access to ARTs and, in particular, IVF. This is true, especially, when it is considered that this approach, as analysed above, has allowed the IACtHR to advance a reading of the scope of the right to private life capable of encompassing access to reproductive health services that includes “the right to have access to the medical technology necessary to exercise this right”²⁴⁹ and a reading of Articles 11(2) and 17(2) of the ACHR in light of the principle pro persona according to which “the scope of the rights to private life, reproductive autonomy and to found a family, derived from [those provisions] extends to the right of everyone to benefit from scientific progress and its applications”.

The incorporation of access to reproductive services and to the necessary reproductive technology, including scientific progress and its applications, as an integral component of private life would help the Strasbourg Court to provide wider generalized protection to reproductive rights and would also enhance the affirmation of such important entitlements as those affirmed in the R.R. and Costa and Pavan rulings, that is the right to access to the information that is decisive for exercising personal autonomy, with specific regard in the case to prenatal diagnosis, and the right to have a child unaffected by the disease of which the parents are healthy carriers. Incorporation of this view would also help to enhance the protection of abortion rights, with reference to the procedural guarantees that have to be ensured under Article 8 of the ECHR and which are already intended, in the Court’s jurisprudence, as access to abortion in case a given State allows it. Of course, it seems very unlikely that it might ease the affirmation of abortion rights and access to abortion services in relation to the substantial limb of private life, as the Court’s view on the beginning of life and its self-restrained approach are hard to change due to the lasting regional pluralism on the issue.

Despite the ECHR system does not contemplate any provision similar neither to Article 14 of the Protocol of San Salvador nor to Article XIII of the ADRDM, reference could be made to Article 15(1)(b) of the ICESCR consistently with the Article 31(3)(c) of the VCLT, as all States Parties to the ECHR are also Parties to the ICESCR.²⁵⁰ Actually, the provision was already recalled in the Strasbourg case law in the Judges’ Separate Opinions and with divergent reading of its content and its impact on the interpretation of conventional rights. In their Joint Dissenting Opinion in the case of S.H. and Others v. Austria, Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, referred to Article 12(1), on the right of everyone to enjoy the highest standard of physical and mental health, and 15(1)(b) of the ICESCR, to clarify that “what is at stake here is not a question of choice between different techniques but, more fundamentally, a restriction on access to heterologous in vitro fertilisation constituting denial of access to available treatment”.²⁵¹ In a different vein, in the Parrillo case, in his Concurring Opinion, Judge Pinto de Albuquerque clarified that the “freedom [indispensable for scientific research protected under Article 15(1)(b) of the ICESCR] may be restricted in order to promote the “general welfare in a democratic society” and that, in particular, “[t]he protection of unborn human life as an indispensable social value in a democratic society, which concerns the welfare not only of present but also future generations, falls squarely within the restriction clause of Article 4 of the ICESCR […]”.²⁵² Beyond the contextualization of the Judges’ Separate Opinions, since the facts as well as the legal issues raised in the cases were different, it seems that the view expressed by Judge Pinto de Albuquerque can extend beyond the question of the donation of human embryos to research, providing guidance on the protection to be ensured to the unborn beyond the specific circumstances of the case, when the scientific progress is at stake before the ECtHR.

From the considerations made, it results all the more delicate but also important for the Strasbourg Court to make reference to the ICESCR. It could be possibly made through a combined reading of Article 12(1) and 15(1)(b) when dealing with reproductive rights and access to reproductive services, in a way that is consistent with the generally recognized core conception of reproductive rights. In this regard, the above-mentioned General Comment No. 22 (2016) would be a helpful reference for clarifying the content of States’ duties under Article 12(1) of the Covenant, above all where it states that “[t]he failure or refusal to incorporate technological advancements and innovations in the provision of sexual and reproductive health services, such as medication for abortion, assisted reproductive technologies, and advancements in the treatment of HIV and AIDS, jeopardizes the quality of care”.²⁵³ In this respect, this statement arguably seems to establish a fil rouge between the Article 12(1) and Article 15(1)(b) of the Covenant which ensure the protection of reproductive rights in relation to the techniques made available by scientific progress, although further precious guidance will only be offered by forthcoming General Comment on the right to science on Article 15(1)(b). What is more, it may also be argued that a similar approach, which underpins the Court’s legal reasoning by reference to the relevant international landscape, would also help to shield the Strasbourg jurisprudence from States’ interferences, which would help to prevent future “backward steps” as the one that the ECtHR took in the S.H. and Others v. Austria case.

That being said, keeping in mind that the IACtHR has had only two chances for expressing its view on reproductive rights, the achievements in San José are more advanced than those of the ECtHR. However, this promising first steps do not exclude that the IACtHR may benefit from the achievements of the ECtHR concerning the right to become genetic parents and, above all, prenatal diagnosis and PGD to strengthen its case law, in line with its usual approach. It is not surprising that, for example, in the Artavia Murillo judgment the IACtHR has recalled the ECtHR decisions in the Vo, A, B, C, Evans, S.H. and Others and Costa and Pavan judgments.²⁵⁴

Arguably, another feasible path may be suggested for the improvement of the Inter-American case law in the reproductive field. In fact, besides the provisions considered above, the ACHR contains also another suitable legal basis, namely Article 26 on “Progressive development”, according to which “States Parties undertake to adopt measures [for achieving] full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States”. This provision, that the Court did not use in the Artavia Murillo judgment, is interesting from several viewpoints. Primarily, because it may arguably offer some protection to sexual and reproductive health even with respect to those States that are not Parties to the Protocol of San Salvador and, thus, are not bound to Article 14 thereof. What is more, it seems interesting to consider the kind of scrutiny that Article 26 of the ACHR would allow to the IACtHR in the field of reproductive rights. It may be advanced, that the Court would benefit from the use of this provision since it recalls the Charter of the OAS, which makes specific reference to scientific and technological progress in relation to the integral development for the peoples of the Member States of the OAS. This is of basic importance as scientific progress is intended in relation to the protection of man’s potential and as a foundation of social justice. This would arguably help to affirm some guarantees under the ACHR in relation to the achievements of scientific progress in the field of reproduction and that such achievement should not be exclusive, but generally accessible. Furthermore, reference to Article 26 would allow the Court to scrutinize States’ compliance with the duty of non-regression, that here would imply to ensure the progressive development of the protection of reproductive and sexual health and rights also through adequate allocation of resources. Arguably, use of Article 26 of the ACHR would require some efforts to the Court as, so far, this provision has been used beneath its potential;²⁵⁵ its use seems desirable as it would be helpful to promote the access to advanced medical reproductive technology through appropriate States funding.

The ECHR system does not contain any comparable provision; nevertheless, some interesting reference is offered by the Oviedo Convention that, at Article 3, foresees States’ duty to ensure “equitable access to health care of appropriate quality”, according to health needs and to the resources available. This could be used as a support to the interpretation by the Strasbourg Court of the obligations under the ECHR. Clearly, the impact of this provision is different from Article 26 of the ACHR: not all States Parties to the ECHR are also Parties to the Oviedo Convention and its scope does not expressly encompass scientific progress. Nonetheless, the standard of quality could be intended as encompassing a full understanding of health and health care, according to the generally accepted notion of sexual and reproductive health and reproductive rights.

That being said, it could be questioned whether some further development may be expected in the case law of the ECtHR and the IACtHR with particular reference to the most advanced reproductive achievements that scientific progress is making available and which need an adequate legal response, as law always “lag behind science”.²⁵⁶ Reference here is made in particular to genome editing and its possible therapeutic applications concerning human embryos in the field of reproduction, seeking solutions capable of framing scientific evolution in the human rights discourse related to reproduction that, at the same time, are respectful of the unborn. Next paragraph, then, explores the viability of a human rights-based approach for ensuring accessibility to such biomedical and biotechnological opportunities and, for this purpose, it assesses which paths are allowed under international law and might be incorporated, even if not immediately, in the generally accepted core conception of reproductive and sexual health and reproductive rights.

6. Scientific progress and reproduction: viability of a human rights- based approach before the ECtHR and the IACtHR

The evolution of scientific progress and the innovative applications that it offers and that might suit important reproductive needs and wishes, pose huge challenges to international human rights law and in particular to such major regional Courts as the ECtHR and the IACtHR. Indeed, biomedicine, biotechnology and genetic engineering are in constant evolution and already offer prodigious means, which have culminated with the achievement of the CRISPR-Cas9, a technique that, as anticipated, even allows to edit the human germline.

The ways in which scientific progress and its achievements can intertwine with reproductive rights are various: of course, they concern human germline editing. The eugenic risks are evident and human germline editing is a particularly debated question: since it affects the oocyte, sperm and early embryo, it entails alterations that are transmissible to the descendants. This is the feature which distinguishes it from human somatic cells alterations, that affect body cells and, thus, concern only the subject treated. Human germline alterations may be carried out for two distinct purposes, namely for therapeutic ends or for human enhancement.²⁵⁷ Focusing on therapeutic modifications, different kinds of interventions are now available and they range, just to mention some possibilities, from the replacement of an altered gene to fixing up such alterations. The research carried out by the Chinese scientists in order to repair the genetic mutation causing beta-thalassemia is a paradigmatic example.²⁵⁸ Another interesting scientific achievement is represented by mitochondrial replacement techniques (MRTs), which can help to prevent the onset of genetic diseases transmissible from the mother to the child and which was allowed in 2015 in the United Kingdom.²⁵⁹ This preserves the genetic kinship between the couple and the child and, at the same time, it prevents the baby from developing a specific genetic disease. These techniques may also be a precious means for female same-sex couples, as they would make possible for the mothers to have a child that is genetically related to both of them. These techniques go beyond the possibilities offered by preimplantation genetic diagnosis (PGD) and preimplantation genetic screening (PGS),²⁶⁰ which do not imply human germline alterations but allow the implantation of the “healthy” embryos, and beyond prenatal diagnosis on the foetus, which is carried out after implantation.²⁶¹ It appears quite evident how all these interesting practices and achievements may benefit reproductive rights but they might importantly affect the unborn, thus their compatibility with international law and their framing within human rights law requires to be assessed.

Very few instruments contain pertinent provisions in this respect. The relevant references are offered by the Oviedo Convention²⁶² and by the UNESCO Universal Declaration on Human Genome and Human Rights (UNESCO UDHGHR).²⁶³ Both instrument build upon the principle of human dignity, which represents the ultimate bioethical principle from which the protection of fundamental rights flows²⁶⁴ and which should be preserved from the risks of eugenics and the distorted applications of scientific progress. In this regard, the UNESCO UDHGHR expressly holds that “everyone has a right to respect for their dignity and for their rights regardless of their genetic characteristics” at Article 2(a) and the Oviedo Convention, in its Preamble, recalls “ the need to respect the human being both as an individual and as a member of the human species and recognis[es] the importance of ensuring the dignity of the human being”, that might be endangered by the “misuse of biology and medicine”. As seen in paragraph two, human dignity is identified by a huge part of constitutional jurisprudence worldwide as the founding value that justifies the protection to be granted to the “potential of life” that the unborn enshrines, even if personhood and, thus, the bearing of the right to life are excluded. The protection of human dignity is the essential point of the relevant provisions which can offer guidance for assessing feasibility of the use of advanced scientific applications in the field of reproductive rights, respectful of the unborn. In this regard, the protection of the unborn and its dignity from the “misuse of biology and medicine” can be intended, with reference to both instruments, in relation the duty of mankind to protect future generations and the principle of responsibility, which in scholarship was a pillar of the philosophy of Hans Jonas, who claimed that human nature has to be preserved at all costs.²⁶⁵ In this regard, when the protection of the descendants is at stake, human germline modifications, either concerning the gametes or the human embryos require thorough consideration, especially because of the intergenerational and transgenerational transmissibility of these alterations, which may clash with the principles under consideration. Indeed, as clarified by the Explanatory Report of the Oviedo Convention, “the developments in medicine and biology […] should be used only for the benefit of present and future generations and not be diverted in ways that run counter to their proper objective”, as scientific progress has to serve always the “benefits of progress to the whole of mankind”.²⁶⁶ Importantly, this statement is echoed by Paragraph 89 concerning Article 13 of the Oviedo Convention²⁶⁷ which provides that “[a] n intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants”, a view that is specified and complemented by Paragraph 91 of the Explanatory Report where it stresses that “[c]onsequently, in particular genetic modifications of spermatozoa or ova for fertilisation are not allowed”. Similarly, the UNESCO UDHGHR, at Article 12(b), provides that “that the application of research “shall seek to offer relief from suffering and improve the health of individuals and humankind as a whole” and, at Article 24, explicitly qualifies human germline alterations as a practice contrary to human dignity.²⁶⁸ The UNESCO and the COE²⁶⁹ recently have restated their reluctancy about human germline editing,²⁷⁰ inviting States to take a wise and cautious approach to the advanced techniques offered by scientific progress and making explicit reference to the eugenic risks related to reproduction. What is more, so far the prohibition of human germline alterations, together with the ban on reproductive cloning, is one of the two biolegal practices about which the international community has expressed its consensus.²⁷¹ Therefore, under the instruments considered and according to the international view emerged so far, the unborn would receive absolute protection from any modification of its human germline; correspondingly, no room for the affirmation of the reproductive rights concerning access to the advanced techniques mentioned above would seem to be left under the Oviedo Convention and the UNESCO UDHGHR. However, some scholars and some scientists have begun to suggest a different viewpoint, that would entail the reconsideration of the rigour of the prohibition.²⁷² What is more, the UNESCO and the COE themselves although restating their reluctance, have recognized that the ethical debate on human germline alterations is still open²⁷³ and that some techniques, as MRTs, were used “despite the considerable ethical controversy and scientific uncertainty about the long-term effects”.²⁷⁴

Thus, it should be questioned whether a redefinition of this view may be desirable and expectable, especially in light of the benefits to the health of the unborn and of future generations that scientific progress has made possible in the last twenty years after the adoption of the instruments under consideration, and whether access to these advanced outcomes of scientific progress may be theorized as a component of reproductive rights from an evolutionary viewpoint.

A key conception, for this purpose, is represented by the restricted notion of the right to genetic identity,²⁷⁵ which is related to the protection of human dignity. As held in scholarship, the restricted notion of this entitlement would encompass only core personal traits²⁷⁶ and, thus, would allow human germline alterations for therapeutic purposes, but not those aimed at enhancement.²⁷⁷ In this respect, the concept of genetic “identity” should not be overlapped with the conception of genetic “integrity”, that implies the right to a non-modified genetic heritage. In scholarship, it was highlighted that “it is important to understand that not every intervention on the human genome aimed at modifying the germline necessarily equates to an eugenic practice” and that “the right to genetic integrity is no longer formulated in terms of a general right to a non- modified genetic heritage or as an equivalent of a right to genetic identity”. This emerges in international human rights law too and a remarkable example is offered by Article 3 of the Charter of Fundamental Rights of the European

Union (CFR), which recalls as an example of eugenic practices those aimed at the selection of persons and which makes reference also to reproductive cloning but does not mention human germline alterations. Again, with even wider consequences, scholarship has highlighted that the conception of human dignity embraced by the CFR refers to any born person, thus it does not concern pre-natal life, as can be inferred from the fact that the Charter, in Title I on “Dignity”, incorporated the prohibition on human cloning in Article 3, on the right to integrity, and not in Article 2, on the right to life.²⁷⁸ Interestingly, it was additionally held that “[t]he association of the right to genetic integrity […] with the right to genetic identity […]focuses solely upon the perils of the [genetic manipulation] latter without considering the potential benefits that can be derived from human genetic interventions” and that “[t]he right to genetic identity, therefore, should both foresee the integrity but also the changeability of one’s genetic architecture.”²⁷⁹

The possibility to rely on preventive and therapeutic human germline alterations in the reproductive field should all the more be reconsidered according to those scholars that have clarified that genetic identity, our authenticity and our uniqueness should not “spawn a human right”²⁸⁰ like, arguably, the enjoyment of reproductive rights in relation the benefits of scientific progress.²⁸¹ What is more, the prevention of the onset of a genetic disease does not seem to be at odds with human dignity; otherwise, the protection of the unborn from possible future suffering seems to be coherent with this rationale.²⁸² In particular, it does not seems to be qualifiable as a “misuse of biology and medicine” capable of endangering the “dignity of the human being” and the “potential of life” that characterizes the unborn as constitutional jurisprudence has stressed in various countries. Again, this view would arguably be consistent with the Oviedo Convention, in particular as Paragraph 90 of the Explanatory Report clarifies that “any intervention which aims to modify the human genome must be carried out for preventive, diagnostic or therapeutic purposes” and that “[i] nterventions aimed at modifying genetic characteristics not related to a disease or to an ailment are prohibited”.

What is more, viability of human germline modifications for therapeutic purposes might be reconciled with Article 14 of the Oviedo Convention, which prohibits the selection of the future’s child sex “except where serious hereditary sex-related disease is to be avoided”. Then, this provision might also be read as leaving some margin to therapeutic interventions on human embryos in the context of assisted reproductive technology, which also seems all the more arguable when one considers that authoritative scholarship affirms the right to be born with dignity,²⁸³ whose scope may encompass therapeutic interventions.²⁸⁴ Moreover, the issue of the lack of consent of the unborn might be dealt with as for “children who are too young to consent for themselves”.²⁸⁵ That being said, once the possibility to advance the reconsideration of the prohibition of the use of preventive and therapeutic human germline modifications in the field reproduction is taken into account, it should be assessed whether and how it could be framed in the human rights discourse for the purpose of analysing its incorporation in the jurisprudence of the ECtHR and of the IACtHR. In particular, it should be assessed whether and how this view might complement the core conception of reproductive rights that has found general acceptance under international law and which already includes such techniques as ARTs and IVF, as stated above. This may be suggested as a feasible path for fostering jurisprudential “rejuvenation” in light of relentless – reproductive - scientific progress.

In this regard, it still seems early to affirm the incorporation of the right to access and enjoy these technologies into the generally accepted conception of reproductive and sexual health and reproductive rights. Currently specific indications in this sense still lack, in part due to the fact that some techniques are still at an experimental stage and practice at the moment has not given the chance to express their view to international judicial and non-judicial human rights bodies, whose jurisprudence has played a fundamental role for making the core conception of reproductive health and rights keep the pace with time. Inclusion of ARTs and IVF is indicative in this sense and helps to argue that also therapeutic human germline editing may be incorporated in this conception in the future. It is arguable also because the relevant human rights bases seem capable of including it and, which concerns us more closely, also of making feasible its incorporation in the case law of the ECtHR and of the IACtHR.

Once again, for the IACtHR it would be an easier task, as suitable legal bases can be sought in the Inter-American Human Rights system, namely the above-mentioned Article 18 of the Protocol of San Salvador and Article XIII of the American Declaration. This seems particularly true in light of the proactive interpretation that the Court has given to these provisions, also by relying on the principle pro persona. In fact, the IACtHR has held that “in keeping with Article 29(b) of the American Convention, the scope of the rights to private life, reproductive autonomy and to found a family […] extends to the right of everyone to benefit from scientific progress and its applications” and that “[t]he right to have access to scientific progress in order to exercise reproductive autonomy and the possibility to found a family gives rise to the right to have access to the best health care services in assisted reproduction techniques²⁸⁶”.²⁸⁷ Arguably, most advanced techniques available may be considered to be encompassed in the notion as best health care services in the field of reproduction.

In a similar vein, an appropriate legal basis can be sought, at the universal level, in Article 12 of the ICESCR, as read by the Committee on Economic, Social and Cultural Rights in General Comment No. 22 (2016). So far, the Committee has not included therapeutic human germline alterations in the field of reproduction within the scope of the right to health and the right to the highest attainable standards of health, although the conception of quality²⁸⁸ as incorporation of “technological advances and innovations in the provision of sexual and reproductive health services”²⁸⁹ seems a promising statement. In the future, this understanding of the entitlement may arguably be capable of encompassing also the techniques under consideration within its scope.

Last but not least, a particularly suitable legal basis seems to be offered by Article 15(1)(b) of the ICESCR, since the provision may encompass the enjoyment of the advanced techniques of genome editing as a therapeutic means for improving the health of the offsprings and preventing them from suffering from a given genetic disease. This is arguable because according to this provision States are under an obligation to ensure that “everyone […] enjoy[s] the benefits of scientific progress and its applications”. The scope of this entitlement may be interpreted more specifically by making reference to Article 27 of the UDHR, which is the archetype of UN human rights treaties. Article 27 provides that everyone has the rights to “share in scientific advancement and its benefits” which, through reference to the verbs “participer” and “participar” respectively used in the French and Spanish version of the UDHR, should be intended as the right to actively participate in scientific progress and its benefits.²⁹⁰ Including access to therapeutic human germline alterations in the field of reproduction within the scope of the provision seems all the more arguable when one additionally considers that States are under an obligation to take all the steps to achieve the “full realization” of this rights, “includ[ing] those necessary for the conservation, the development and the diffusion of science”, pursuant to Article 15(2) of the ICESCR. So far, the Committee on Economic, Social and Cultural Rights has not expressed its view on the right to enjoy the benefits of scientific progress and, as anticipated above, there are great expectations about the General Comment of the right to science, which is going to be issued soon, in order to have some guidance. The view advanced seems all the more arguable if we consider that the 1997 UNESCO UDHGHR says that ‘‘benefits from advances in biology, genetics and medicine, concerning the human genome, shall be made available to all”.²⁹¹ In this regard, for having some clarification on how the conception of “benefit sharing”²⁹² may be intended at the international level, Article 19 of the UNESCO Universal Declaration on Human Genetic Data²⁹³ may offer an interesting reference where it provides that “benefits […] should be shared with the society as a whole and the international community”, a principle to which States shall provide effectiveness by ensuring “provision of new diagnostics, facilities for new treatments or drugs stemming from the research” besides “support to health services”. If this view is applied to our reflections, it may arguably suggest that the innovative reproductive techniques made available through human germline editing could be considered as benefits to be shared.

Of course, boththe ECtHRandthe IACtHR would benefit from incorporation of such standards in their case law when dealing with reproductive rights, in line with the usual and established approach of the IACtHR and with some more efforts for the Strasbourg Court for using these references as a support for the interpretation of conventional duties under the ECHR in line with Article 31(3)(c) of the VCLT. Maybe we cannot expect this to happen immediately, but relentless scientific progress requires to consider paths of jurisprudential “rejuvenation” as soon as possible, in order to not to be unprepared in front of the challenges posed by medical and biological evolution.

7. Conclusions

The definition of the interplay between the protection of the unborn and reproductive rights represents a challenging issue for international human rights jurisprudence, and has been tackled on several occasions by both judicial and non-judicial human rights bodies.

Beyond reflecting the nature of reproductive rights as not “independent rights”, the international jurisprudence has also contributed, along with the relevant soft law sources, to promote and highlight the existence of a core conception of sexual and reproductive health and reproductive rights that has received generalized acceptance at the international level, and which has proven capable of encompassing the achievements of scientific progress in the reproductive field, as ARTs and IVF.

This has not been an easy task, especially considering the strong pluralism of views and the delicate moral implications that characterize this question.

This is why the results achieved by the two major regional human rights Court taken into consideration are praiseworthy. Of course, the threshold and the content of the protection ensured are not the same, as their reference operational frameworks are different as to the legal bases contemplated and as to the approach that the two bodies have developed also in line with their relationship with States Parties and domestic landscapes.

In this respect, the reading of States’ obligations related to reproductive rights in the Inter-American system is outstanding and it is of basic importance when we consider the current process of “rejuvenation” that Latin America is currently facing in the field of abortion rights and that sometimes is not generally welcomed. It is particularly important especially when one considers that often politics and conservative faith-based activism try to curb the affirmation of reproductive rights in the region, and Brazil offers a paradigmatic example in this regard. The relevance of the results achieved by the IACtHR and of the solutions it may adopt in perspective can have a noteworthy impact at the national level. In this respect, domestic obligation deriving from the ACHR would imply a commitment to make reproductive scientific progress accessible, underpinned by the duty of non-regression in its implementation and its funding according to Article 26 of the ACHR. The impact would be particularly interesting in those domestic legal orders that provide the “bloque de constitucionalidad”: in fact, the consequence would be a the “constitutionalisation” of the duties set by the conventional system in the reproductive field, also in light of the interpretation given by the Court.

The promotion of common and advanced standards of protection of reproductive rights is likely to be constantly enhanced before the IACtHR, also thanks to the nature of the conception of the rights to life adopted, capable of suiting the different exigencies that specific circumstances can pose on a case by case basis. This task seems harder for the Strasbourg Court, which has to tackle a peculiar unprecedented States’ reluctancy to implement its decisions, besides the delicate pluralism of views. Any “step backward” should be hopefully avoided, through enhancement of the promising results so far achieved. In this regard, despite some self-restraint is unavoidable, the Court can rely on its capacity to interpret the ECHR as a living instrument that has characterized its case law including in the field of biolaw.

The promotion of common or at least closer standards of protection is a basic goal which also implies considerations of social justice. It goes without saying that “reproductive tourism” is capable of exacerbating social and economic gaps and it can preclude access to reproductive opportunities to less wealthy couples. This is clearly at odds with States’ obligation to ensure access to health care, including reproductive services, without any discrimination in both human rights frameworks considered, according to the resources available.

This is particularly relevant from a budgetary perspective, since ensuring full and indiscriminate access to reproductive services is an ambitious and expensive objective, even more when considered in relation to perspective opportunities related to such advanced biotechnologies as genome editing. However, it is a fundamental aim as well, if we really want to prevent law to lag behind science and to be unprepared in front of the challenges posed by scientific progress. In particular, human rights protection is not imaginable without appropriate framing, timely devised.

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Notes

Author notes