CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ MITOCHONDRIAL REPLACEMENT THERAPY IN THE LIGHT OF THE CONVENTION… discrimination in a narrow sense, it can still represent perfectly suitable grounds for a public law prohibition of SSA. 4.3 The anti-discriminatory aim of the prohibition The conclusion of the last subchapter can be applied to selective MRT. This practice arguably cannot be considered discrimination against women in the strictly legal sense. However, it can be argued that MRT in male embryos reinforces a subordinate position of women in society (primarily with regard to the access to health care) and therefore should be prohibited by the public law. And, similarly to SSA, the practice of selective MRT could also be called discriminatory. We can explain this conclusion in more detail. The prohibition of MRT in male embryos would still be based on the protection of a certain group of people – i.e. women or people with a particular genetic heritage. From the teleological perspective, its aim is the same as the aim of anti-discrimination law, that is, to guarantee the equal position of comparable groups of people in the society, even though the prohibition of selective MRT would achieve this aim in a less direct manner. For this reason, the suitability of the public law prohibition of selective MRT could be analogically assessed from the perspective of discrimination. The question of discrimination The term discrimination is probably intuitively understood by all members of modern societies in accordance with the definition which may be found in the famous Black’s Law Dictionary, stating that discrimination is “a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored”. 48 The term also contains “[t]he effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or handicap. 49 An analogical definition has been established in the European Court of Human Rights case law, according to which “discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations” 50 and, on the other hand, also the situation “when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” 51 However, this basic delineation requires further explanation. 5.1 Direct or indirect discrimination? The notion of unequal treatment itself may, in some cases, become a very difficult question. In order to grasp this problem, several types of discrimination have been classified, basically consisting of direct and indirect discrimination. 48 GARNER, Bryan A. (eds.). Black’s Law Dictionary. 8 th edition. West, St. Paul 2004, p. 500. 49 Ibid. 50 See for example D.H. and Others v. the Czech Republic, (application no. 57325/00), the ECtHR judgment of 13 November 2007, § 175. 51 See Thlimmenos v. Greece, (application no. 34369/97), the ECtHR judgment of 6 April 2000, § 44. 5.

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