Zamani & Scott

European Court of Human Rights: ART

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Article 8 (Right to privacy) of the European Convention on Human Rights under The European Court of Human Rights (ECtHR) unanimously decided in favor of a Romanian couple seeking the return of their embryos from a state-owned hospital. In the case, Nedescu v. Romania, a husband and wife had successfully used a medical clinic to have one child after in-vitro fertilization and then continued to store four additional embryos at the clinic for future use. In the interim, the clinic became the subject of a government criminal probe, during the course of which, their embryos, along with those of several hundred other families, were removed to a government institution. The clinic and its administrators were subsequently found guilty and the clinic closed. The embryos were transferred to yet another facility, the government affiliated hospital from which plaintiffs sought the embryos’ return. During this time, the plaintiffs made multiple, repeated efforts to gain access to or regain control of, their embryos to no avail. The plaintiffs prevailed in a domestic proceeding against the governmental agency that originally orchestrated the removal of their embryos from the clinic, but were unable to get the administrative authorities to carry out the judicial orders. In the meantime, the wife also twice tried to undergo fertility treatments at another clinic to create more embryos and in the course of those medical treatments discovered that she was unable to produce the eggs necessary to create more embryos.

The Court determined that the couple’s wish to have another child was a joint parental project of the applicants’ and an intimate aspect of their private life. In order for the State (Romania) to be found in violation of Article 8, the Court had to find that 1) there had been an interference with the plaintiffs’ right to respect for their private life, which the Court established from the State’s inability or unwillingness to enforce the domestic judicial order allowing the couple to retrieve their embryos; 2) where such interference was not “prescribed by law”, pursued one or more of the legitimate aims specified in Article 8 § 2, and was “necessary in a democratic society.” The Court found that the manner in which the judicial and administrative authorities involved implemented and interpreted the relevant legal provisions concerning the seizure, the storage following such a seizure and the return of the applicants’ embryos was incoherent and thus lacked the required foreseeability.

With this decision, the ECtHR underscores that the right to privacy envisioned in Article 8 clearly encompasses reproductive rights and within those rights, the right of individuals to determine how and when they want to plan for a family. It mentions several cases that touch on the area of ART which might be of interest, Knecht v. Romania, which arises out of the same set of circumstances that gave rise to this case but which addressed a different aspect of governmental actions, Parrillo v. Italy (plaintiff’s right to exercise control over her embryos), S.H. and Others v. Austria (involving couples seeking egg and sperm donors), Dickson v. the United Kingdom (inmate and his wife sought access to artificial insemination facilities).

It is interesting to note that the plaintiffs in their application reserved the right to raise a complaint under Article 2 regarding an infringement of the embryos’ right to life, which they ultimately didn’t pursue, even though their complaint asserts that the government’s actions had kept them from accessing the embryos for more than six years and that they had thus lost the possibility of having another child. The possible non-viability of the embryos at the time plaintiffs filed the case due to passage of time, use of improper methods in the transport of the embryos as they were moved from one institution to another and even to confusion as to the identity of the embryos due to lack of individual identification and labeling at the time of transport are mentioned throughout the course of the narrative and even in the Court’s reasoning but any rights the embryos might have and their protection under Article 2 are unaddressed in this case.

Another point of interest is that the Court specifically mentions that Mrs. Nedescu’s inability in this case to undergo new stimulation treatments to obtain additional embryos was a factor that had to be considered. For an observer, it raises the question whether the facts of this case are so particular that the Court, with this limitation, is pre-emptively trying to limit the scope of the decision’s impact. The plaintiffs make reference in their complaint to the families of the hundreds of other embryos that had been stored at the original clinic and at a minimum, the importance of any potential decision in this case to those families.