CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ MITOCHONDRIAL REPLACEMENT THERAPY IN THE LIGHT OF THE CONVENTION… on grounds of his or her genetic heritage is prohibited.” This is explicitly confirmed in the Explanatory Report to the Convention on Biomedicine, according to which Article 11 of the Convention on Biomedicine adds a person’s genetic heritage to the list of prohibited grounds of discrimination in Article 14 of the European Convention. 70 Furthermore, it has already been established that health status fits within the scope of “other status”. 71 There have been identified “suspect” grounds of discrimination which require the use of much stricter criteria in the course of judicial assessment of different treatment, i.e. the assessment of its objective and reasonable justification. 72 There can be no reasonable doubt that sex belongs to this “suspect” category. Genetic heritage has not, and with respect to the time it was written, could have not been listed in the European Convention. However, it is necessary to take into account the explicit prohibition of discrimination on its grounds in the Convention on Biomedicine, as well as, possibly, the very vulnerable position of people with minority genetic heritage. Therefore, we can assume that genetic heritage should also be The third step of the assessment of discrimination may prove crucial. Discrimination cannot take place between incomparable, that is completely different, elements. Comparability, therefore, can be understood as the ability of the compared elements to be reasonably classified into one set of elements, i.e. to one category. In other words, the court has to decide whether the congruencies between the compared elements outweigh the differences between them. All of these congruencies and differences must be related to a certain relating feature that is crucial to the particular case. The choice of the relating feature is of extreme importance: it determines the outcome of the comparison. The feature is often given, for example, by the facts of the case or by the regulation in frame of which the discrimination is assessed. 73 This is also the case in the context of selective MRT: the comparability of male and female embryos must be assessed for the purpose of the disputed practice. It would be absurd to state that selective MRT reflects any cultural inequality of men and women. The only difference relevant to the practice (and for the related regulation) is that of mtDNA inheritance. From a legal and ethical perspective, this difference just happens to overlap with the difference in sex. If some women could not transmit their mtDNA to their descendants, or if some men could transmit it, and if it could be known to which of the groups the particular embryo belongs, there would be no reason to even consider possible discrimination on the grounds of sex. A contrario , this simple fact reveals in which situation the unfair discrimination could be real. For the sake of argument, we can imagine that it would be scientifically proven that a certain DNA mutation enables men to transmit their mtDNA to the future generations. If these male embryos were not excluded fromMRT, there 70 Article 76 of the Explanatory Report to the Convention on Biomedicine. 71 See for example Kiyutin v. Russia, (application no. 2700/10), the ECtHR judgment of 10 March 2011. 72 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. 55. 73 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. 1222. considered “suspect” grounds of discrimination. 5.4 The comparability of the situation

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