CYIL 2015

PAVEL BUREŠ CYIL 6 ȍ2015Ȏ will follow the logic of a pregnant woman towards her child to be born. 74 The link between a pregnant woman and the foetus cannot be based only on a physiological link (the umbilical cord), but on a more general link as well (genetic, emotional, the child forming a part of her private life for some period of time etc.) This kind of link can be found even for couples aiming to procreate under ART. Embryos (frozen embryos) are a direct part of a couple’s private life, in their total (not to say absolute) disposition. Logic developed further in this sense claims to ask whether frozen embryos can be covered by the right to property 75 of either potential future parents (or one of them 76 ) or of a medical institution operating with frozen embryos. In the perspective of the over-all concept of human dignity, it is very difficult to comprehend the issue (status) of embryos in the aforementioned way. Even so, we accept embryos and foetuses are linked to a pregnant woman and thus this situation of hers is covered by the right to private life. However, it is a question of two separate human beings which are both under some degree of protection. The existence of one human being (the embryo) cannot be underestimated and compared to the other’s existence. The vulnerableness of one does not presuppose a lesser degree of protection, although we cannot subordinate it under Art. 2 of the Convention. 77 If this is right for embryos in the womb, the qualification should not change for embryos outside, where the protection should be even more developed. Thus, society (States) cannot treat them as property but as human beings in whom the conditio of life is different; however, the substance remains the same – they are human beings. With this over-all perception of the status of embryos, we can now develop the independent question of medically assisted procreation (MAP) as a specific artificial reproductive technique. The question is not whether couples (or individuals too) have a right to employ this technique without any discrimination or not. We can assume that different European States have different national legislation in this matter balancing individual and collective interests. 78 This analysis is not challenging 74 „The interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant her private life becomes closely connected with the developing foetus“. See Tysiac v. Poland (no. 5410/03). 20 March 2007. Para. 105. 75 See the case Parrillo v. Italy (no. 46470/11); the case is not under consideration of the Grand Chamber of the Court. 76 It would, however, change somehow the case-law established by the case Evans v. United Kingdom, (no. 6339/05), 10 April 2007. 77 Only in the situation where there might be a conflict of a sole existence, one have to protect the life of mother – existing human being to the detriment of the foetus. 78 We argue, for example, that homosexual couples cannot resort to ART. This technique claims to be a couples’ infertility treatment technique. Thus, as homosexual couples are not able to procreate naturally, they cannot claim to use ART in this regard. But, if one should admit that ART is a technique allowed by States to bypass the logic of natural procreation, one should allow the procreation for all as a specific reproductive right without any discrimination – individuals, couples, groups, heterosexuals, homosexuals etc.

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