CYIL vol. 9 (2018)

MARTIN ŠOLC CYIL 9 ȍ2018Ȏ We should notice that even though the problem of abortion is not specifically addressed in the Convention, the principle of non-selection may be understood as a broader declaration of the necessity to protect the equality of the sexes and the need for its protection in a broader sense. In this way, Article 14 may indirectly influence the debate on sex-selective abortions (SSA). Perhaps the reader has noticed that the exception from the principle of non-selection of sex, i.e. the avoidance of serious hereditary sex-related disease, seems to aptly apply to selective MRT. However, we demonstrated that Article 14 does not apply directly to MRT, even though it is relevant for the assessment of its legal aspects. The subject of rights Before we will start to analyse the question of discrimination, it is necessary to consider whether this question is meaningful. Theoretically, it might happen that it makes no sense whatsoever since there is no subject of rights that could possibly be discriminated against. 4.1 The personhood of embryo Article 1 of the Convention prohibits the discrimination only in relation to persons. Even more precisely, it connects the principle of non-discrimination with the protection of individual rights (which, of course, only belong to persons): “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.” The Convention intentionally leaves open the question of whether the terms of human being and human person are synonymous, i.e. whether there are any human beings that are not persons (e.g. embryos). 33 This approach is in accordance with the European Court of Human Rights case law which allows member states a wide margin of appreciation regarding the question of the status of unborn life since a European consensus on the matter has not been established. 34 The debate on the moral status of embryo and foetus 35 is way too complex to be explored in this article. 36 We can only remind the reader that the European Court of 33 See Article 18 of the Explanatory Report to the Convention on Biomedicine (“Explanatory Report”). The Convention acknowledges that “human dignity and the identity of the human being had to be respected as soon as life began” (Article 19 of the Explanatory Report). Human being denotes an individual living human entity from the moment the human life begins. This entity is guaranteed human dignity and identity. However, it is not clear whether the human person – which has individual rights – starts to exist simultaneously or after some time when the human being fulfils certain functions. 34 See for example Paton v. the United Kingdom, (application no. 8416/79), the European Commission of Human Rights decision of 13 May 1980, or Vo v. France, (application no. 539/24/00), the ECtHR judgment of 8 July 2004, § 82. 35 The prenatal human life is called an embryo until the end of the eighth week of its development, after which it is called a foetus. 36 For a very brief introduction from different ethical positions, see for example VÁCHA, Marek. Problém osoby. [The Problem of Personhood.] In VÁCHA, Marek, KÖNIGOVÁ, Radana, MAURER, Miloš. Základy moderní lékařské etiky . [The Introduction to Modern Medical Ethics.] Portál, Praha 2012, pp. 45-54, ČERNÝ, David (eds.). Lidské embryo v perspektivě bioetiky. [The Human Embryo in the Perspective of Bioethics.] Wolters Kluwer, CEVRO Institut, Praha 2011, LEJEUNE, Jérôme. Test Tube Babies are Babies. In CHADWICK, Ruth F. (eds.). Ethics, Reproduction and Genetic Control. Routledge, London 1992, pp. 44-52, IDE, Pascal. Je zygota lidskou osobou? [Is Zygote a Human Person?] Triton, Praha 2012, SINGER, Peter. Practical Ethics. 2 nd edition. Cambridge University Press, Cambridge, 1993, pp. 135-174, SUCHÁNEK, Marek. Mýtus ontologického 4.

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