CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ MITOCHONDRIAL REPLACEMENT THERAPY IN THE LIGHT OF THE CONVENTION… The scientists guessed that it might have been precisely this mutation that provided the paternally inherited mtDNA with a selective advantage and enabled it to survive the elimination process. 28 More generally, it was shown that in some cases of unknown frequency, paternal transmission of mtDNA in humans is possible. However, as far as it is known today, this phenomenon does not seem to be particularly important for human health. It seems that paternal mtDNA transmission is extremely rare, even though this opinion could theoretically be challenged if a lengthy mtDNA screening was more common. Furthermore, some studies claim that there is so little mtDNA transmitted from the father that it is, in fact, negligible. 29 In any analysis of the legal aspects of MRT, it can be assumed that mtDNA is, in general, only inherited in the maternal line. The Convention on Biomedicine regulation For the purpose of this article, the crucial Convention on Biomedicine provision is to be found in its Article 13 which prohibits germline modification: 30 “An 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.” Article 11 of the Convention is also significant, since it guarantees the principle of non-discrimination on grounds of genetic heritage as it states: “Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited.” Finally, we need to be aware of Article 14 which expresses the principle of non-selection of sex : “The use of 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.” This provision obviously applies to the use of artificial reproduction technology. 31 Its applicability to MRT is rather intricate. Since MRT takes place in the context of IVF, it is not entirely excluded from the scope of Article 14. However, MRT represents a treatment of the embryo, even if a selective one, rather than the selection of embryos. If selective MRT led to the practice of treating male embryos and discarding female ones, Article 14 would be applied to the IVF procedure rather than MRT as such 32 . Therefore, we can assume that Article 14 is relevant to MRT as an expression of the general value of equality of the sexes. 28 Ibid. 29 See LADOUKAKIS, Emmanuel D., EYRE-WALKER, Adam. Evolutionary genetics: Direct evidence of recombination in human mitochondrial DNA. Heredity. (2004, Vol. 93), p. 321. accessed 19 May 2018. See also, for example, LODISH, Harvey, BERK, Arnold, KAISER, Chris A., KRIEGER, Monty, SCOTT, Matthew P., BRETSCHER, Anthony, PLOEGH, Hidde, MATSUDAIRA, Paul. Molecular Cell Biology . 6 th edition. W. H. Freeman and Company, New York 2008, p. 238. 30 In the Czech Republic, the infringement of the prohibition of germline modification would constitute a criminal offence (Section 167 of the Act No. 40/2009 Coll., the Criminal Code). See JIRÁSKOVÁ, Kateřina. Vybrané trestné činy v souvislosti se zdravotní péčí. [Selected criminal offences related to health care.] In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, p. 361. 31 See also Article 93 of the Explanatory Report to the Convention on Biomedicine. 32 We can also imagine a different situation: a female embryo was diagnosed with a mitochondrial disease but the parents insisted on its implantation to the mother’s body. A girl with a mitochondrial disease was born and survived to adulthood with significant suffering. Ultimately, she chose to sue her parents or the provider of health care for failing to prevent her birth (the so-called wrongful life claim). Or, the parents of the girl would sue the health care provider for failing to provide them with sufficient information (the wrongful birth claim). See the analysis of relatively similar situations in ŠUSTEK, Petr, ŠOLC, Martin. Court Decisions inWrongful Birth Cases As Possible Discrimination Against the Child. Espaço Jurídico Journal of Law [EJJL]. (2017, Vol. 18, No. 1), pp. 31-48. 3.

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