Costa and Pavan v. Italy

Following the birth of their first child, the applicants, Costa and Pavan, discovered that they were carriers of cystic fibrosis, a genetic disease. Their child was born with the disease. A prenatal test confirmed that their second child was also affected by cystic fibrosis. They decided to terminate the pregnancy on medical grounds.

The applicants sought to take advantage of Assisted Reproduction Technology (ART) and preimplantation genetic diagnosis (PGD) for the purposes of selecting an embryo unaffected by the disease. However, under Italian law, they did not have access to these techniques. ART was available only to sterile or infertile couples, as well as to couples in which the man suffers from a sexually transmissible viral disease that could be contracted by the woman or the fetus. There was a blanket ban on PGD. The complainants argued that not having access to these techniques offended their right to respect for their private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”).

The Court held that there was a violation of the applicants’ right to respect for their private and family life under Article 8 of the Convention. The Court reasoned that “private life” under Article 8 of the Convention is a broad concept that includes, among other things, the right to respect for the decision to become or not to become a parent, as well as the right to respect for the decision to become genetic parents. The Court concluded that the provision extends to the right to use techniques for in vitro fertilization, including ART and PGD.  Given the scope of Article 8, the Court held that the restrictions under Italian law amounted to an interference with the applicants’ rights to respect for their private and family life.

The Court was not persuaded by the Italian government’s justification for the interference, which was to protect the health of the child and the mother. The reasons the Court gave for not being persuaded were twofold. First, the Court deemed that a child could not be placed in the same category as an embryo; thus, a child would not be affected by in vitro fertilization. Second, Italian law permitted women to abort a fetus on medical grounds, and a fetus is far further developed than an embryo. The legality of opting for an abortion on medical grounds was seen as inconsistent with the laws restricting the use of in vitro fertilization to select an embryo unaffected by a genetic disease. Given this inconsistency in Italian legislation, the Court concluded that the State’s interference with the applicants’ right to respect for their private and family life was disproportionate.

“…the Court considers that the applicants’ desire to conceive a child unaffected by the genetic disease of which they are healthy carriers and to use ART and PGD to this end attracts the protection of Article 8, as this choice is a form of expression of their private and family life. Consequently, this provision is applicable in the present case.” Para. 57.

“In order to justify this interference, the Government refer to the concern to protect the health of “the child” and the woman, the dignity and freedom of conscience of the medical professions and the interest in precluding the risk of eugenic selection. The Court is not persuaded by those arguments. While stressing that the concept of ‘child’ cannot be put in the same category as that of ‘embryo’, it fails to see how the protection of the interests referred to by the Government can be reconciled with the possibility available to the applicants of having an abortion on medical grounds if the foetus turns out to be affected by the disease, having regard in particular to the consequences of this both for the foetus, which is clearly far further developed than an embryo, and for the parents, in particular the woman.” Paras. 61-62.