CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ MITOCHONDRIAL REPLACEMENT THERAPY IN THE LIGHT OF THE CONVENTION… This might be a little counter-intuitive for the general population who often understands discrimination simply as different treatment of persons. However, it is widely acknowledged that different treatment of a certain group should be adopted if there is an adequate reason for it. If there are circumstances that not only permit but require such a distinction, there arises the right to differentiated treatment, or, in other words, the right to positive discrimination. 60 The second sub-type of indirect discrimination arises when there is an exception to a general rule or practice, which has disproportionate prejudicial effects on a certain group of persons. 61 This can be illustrated by a situation in which part-time workers have fewer employment rights than full-time employees, while the former are mostly women. 62 The victim of this kind of discrimination would demand the abolishment of the exception, leading to a treatment that would be equal both substantively and formally. 63 We might be tempted to consider MRT to be a case of direct discrimination. It is true that on a physical level, male and female embryos are treated differently in the context of the practice: male embryos undergo MRT while female embryos do not. However, we may understand the whole situation differently. Embryos of both sexes are subjected to the same rule, that is the permissibility of MRT only in those embryos that cannot transmit the genetic change to the next generations. From this perspective, we should examine the possibility of indirect discrimination of the first sub-type. In other words, we can ask whether this rule is fair, given that it has extremely disproportionate effects on female embryos. The positive answer to this question may be our hypothesis. We will now proceed to find out whether this hypothesis can be reasonably verified. In order to do so, we will roughly imitate the ECtHR approach to discrimination cases, asking the relevant questions in the following subsequent four steps: 1) whether any right guaranteed by the European Convention was violated (or, in our case, whether it would have been violated were the embryos persons recognised by the law), 2) whether the discriminatory treatment was based on some of the prohibited grounds of discrimination , 3) whether the complainant was in a comparable situation with the persons treated differently, and 4) whether the different treatment can be objectively and reasonably justified. 64 5.2 The violated right We have already discussed that strictly speaking, there is no legally recognized person whose right could be violated by the practice of selective MRT. If we are analysing the Council of Europe anti-discrimination approach, we are doing so only in order to use the results of this analysis to inform our public-law problem by analogy. However, it seems to be suitable 60 See ALEXY, Robert (eds.). A Theory of Constitutional Rights. Oxford University Press, Oxford, New York 2002, p. 274. 61 See KÜHN, Zdeněk. Diskriminace v teoretickém a srovnávacím kontextu. [Discrimination in Theoretical and Comparative Context.] Právní fórum. (2007, Vol. X, No. 4, Příloha [Annex]), p. 62. 62 RIVERS, Julian. A Theory of Constitutional Rights and the British Constitution. In ALEXY, Robert (eds.). A Theory of Constitutional Rights. Oxford University Press, Oxford, New York 2002, p. xlvi. 63 For this reason, this sub-type of discrimination is sometimes called implicit direct discrimination rather than indirect discrimination. Ibid., p. xlvi. 64 See BOBEK, Michal. Zákaz diskriminace (čl. 14 EÚLP a Protokol č. 12). [The Prohibition of Discrimination (Article 14 of the ECHR and the Protocol No. 12).] In KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář. [The European Convention on Human Rights. The Commentary.] C. H. Beck, Praha 2012, p. 1214.

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