CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ MITOCHONDRIAL REPLACEMENT THERAPY IN THE LIGHT OF THE CONVENTION… The prohibition of germline modifications embodied in Article 13 of the Convention on Biomedicine apparently serves the protection of public health through the prevention of risking the incidence of unpredictable health consequences in the future generations. The protection of public health is considered a legitimate aim by the ECtHR. 80 In relation to MRT, the prohibition of the practice in female embryos is capable of achieving this aim, even though it is only the necessary and not the sufficient condition of it. The reasonable relationship of proportionality between the aim and the means employed is always rather subjective, but it can be reasonably argued that selective MRT is not disproportionate. We can conclude that even if male and female embryos were deemed comparable for the purpose of selective MRT, the disputed practice is objectively and reasonably justified. Conclusion We introduced the mitochondrial replacement therapy (MRT) as a technique which could be functionally described as a mitochondria replacement in embryos in vitro . This means the change of mitochondrial DNA, which in case of female embryos constitutes a germline modification prohibited by Article 13 of the Convention on Biomedicine. Since mtDNA is inherited from the maternal line (even though there is a known case of paternal mtDNA transmission), it could be argued that MRT can only be legally carried out on male embryos. We named the potential practice of carrying out MRT only in male embryos a “selective MRT”. This article focused on the question whether this practice would have a discriminatory nature in relation to women or persons with a specific genetic heritage. Even though embryos are not recognised as persons under the law, and therefore cannot have individual rights, the selective MRT could be subjected to a public-law prohibition. Since the aim of this prohibition would be the same as the aim of anti-discrimination law (that is to guarantee the equality of comparable groups of people), we proceeded to assess the suitability of the prohibition of selective MRT from the perspective of discrimination. At first sight, selective MRT could resemble discrimination, mainly in its indirect form. However, male and female embryos can be considered incomparable for the purpose of selective MRT. Even if male and female embryos were considered comparable, the practice would have a legitimate aim and there would be a reasonable relationship of proportionality between the means employed and the aim to be realised, therefore, the different treatment would be objectively and reasonably justified. We can also state that selective MRT would be nothing but an acknowledgment of a natural difference of a very specific feature between sexes. Analogically, if there was a medicinal product that would for any reason work only in a female or a male body, its prescriptions would not constitute discrimination against the other sex. Unfair discrimination would be constituted only in a case when female embryos would be excluded fromMRT based on their sex itself, i.e. regardless of their ability to transmit their mtDNA to the future generations. On the other hand, the prohibition of selective MRT could arguably represent a discriminatory regulation in relation to men, excluding male embryos from the provision of the highest attainable standard of health care.

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80 See Kiyutin v. Russia, (application no. 2700/10), the ECtHR judgment of 10 March 2011, § 66-68.