CYIL vol. 9 (2018)

MARTIN ŠOLC CYIL 9 ȍ2018Ȏ for achieving this goal to ask which rights would be violated if there actually was a person recognised by the law who could have been harmed by the said practice (for example, if the ECtHR recognised the personhood of human embryo, at least in a certain limited context). Over the course of time, the ECtHR case law has significantly widened the scope of application of Article 14 of the European Convention. For the infringement of Article 14, it is only required that the supposed discrimination “falls within the ambit” of some of the European Convention Articles. 65 This approach obviously leads to the protection of many rights not explicitly guaranteed by the European Convention, opening the gates to a variety of discrimination claims. Furthermore, Protocol No. 2 to the European Convention understands discrimination much more widely, as it guarantees equality in “ [t]he enjoyment of any right set by the law”. 66 The ECtHR has confirmed many times that the right to life guaranteed in Article 2 of the European Convention imposes on the state not only the negative duty not to unlawfully take life, but also the positive duty “to take appropriate steps to safeguard the lives of those within its jurisdiction”. 67 According to the ECtHR case law, Article 2 could be violated by “the acts and omissions of the authorities in the field of health care policy”. 68 Even though the ECtHR is very reluctant to define the minimal required standards of health care, the selective practice of MRT could theoretically fit within the scope of Article 2. From the Convention on Biomedicine’s perspective, there could be a violation of its Article 3, which imposes duty on the parties to the Convention on Biomedicine to “(…) take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality” . Even though the proceedings cannot be brought before the ECtHR on the exclusive grounds of a violation of the Convention on Biomedicine, 69 its provisions may prove important for the public-law regulation of MRT. 5.3 The grounds of discrimination It does not require a lot of effort to conclude what the grounds of discrimination might be in the context of selective MRT. Article 14 of the European Convention contains a non- exhaustive list of prohibited grounds of discrimination among which sex is named in the first place. The list ends with a notion that any “other status” similar to the ones explicitly stated might be considered prohibited grounds of discrimination. In light of the scientific development that has taken place since the European Convention was written, and taking into account the unity of the Council of Europe’s system of human rights, it can be concluded that the “other status” may also be represented by genetic heritage in the sense of Article 11 of the Convention on Biomedicine which states: “Any form of discrimination against a person 65 See for example Van der Mussele v. Belgium, (application no. 8919/80), the ECtHR judgment of 23 November 1983. 66 Article 1 (1) of the Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. 67 As it was first stated in L.C.B. v. the United Kingdom, (application no. 23413/94), the ECtHR judgment of 9 June 1998, § 36. 68 Nitecki v. Poland, (application no. 65653/01), the ECtHR decision of 21 March 2002. See also for example Powell v. the United Kingdom, (application no. 45305/99), the ECtHR decision of 4 May 2000, or Byrzykowski v. Poland, (application no. 11562/05), the ECtHR judgment of 27 June 2006. 69 See ANDORNO, Roberto. The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law. Journal of International Biotechnology Law. (2005, Vol. 2, No. 4), p. 136.

292