Palmer E. Hurst† & Christina A. Hurst†† | 2 Regent J. Glob. Just. & Pub. Pol. 155 (2015)
INTRODUCTION
The European Court of Human Rights made a difficult decision this year regarding fetal rights and the right of a state to protect life.1 In the case of Parrillo v. Italy, an Italian woman challenged the right of the Italian government to prevent her from using her and her late partner’s in vitro fertilized embryos for scientific research.2 Specifically, Ms. Parrillo, the appellant, claimed a “right to the peaceful enjoyment of her possessions”3 and the “right to respect for her private life” under the European Convention on Human Rights (the “ECHR”).4 She intended to donate her embryos, which were conceived through medical assistance, to research.5 However, sections 13 and 14 of Italian law no. 40 of February 19, 2004 (“Law no. 40/2004”) state that in vitro fertilization may be used to assist reproductive problems, which is the right of the individual, but research, cryopreservation and destruction of embryos is forbidden.6
The European Court of Human Rights (the “Court”) decided to accept the case because there is a potential incompatibility between Law no. 40/2004 and the ECHR that raises a question of constitutionality under Article 117 of the Italian Constitution.7 The Court reasoned that if Law no. 40/2004 violated the ECHR, it also would violate the Italian Constitution because “the international law obligations undertaken by Italy in signing and ratifying the European Convention on Human Rights include the duty to bring its own legislation into line with the provisions of the Convention in accordance with the meaning attributed to these by the . . . Court.”8 This was a case of first impression, where the Court needed to decide if there was a conflict between Law no. 40/2004 and the ECHR.9 The Court ruled that Law no. 40/2004 is not in conflict with the ECHR, and is therefore constitutional.10
In Parrillo, the Court moved away from allowing a parent to have complete control over the fate of an embryo.11 The Court made it clear that Council of Europe member states are free to recognize embryos as human beings and protect them accordingly.12 Although the Court declined to fully protect the sanctity of life in its earliest form, the Parrillo judgment is a significant step towards this recognition.13 The Court turned away from its previous rulings that treated embryos as possessions to be disposed of at will.14 Parrillo v. Italy significantly altered the trajectory of the Court’s jurisprudence.15 As a result, Parrillo is a strong foundation for the pro-life movement.16
This Comment explores the Parrillo decision and its potential effects on the Court’s jurisprudence. Part I describes the facts as presented to the Court. Next, Part II explains the holding of the Court, and Part III presents the Court’s analysis of Ms. Parrillo’s claim. Finally, Part IV discusses the reasoning of the Court and how it might affect future cases in Europe.
I. THE FACTS
The applicant, Ms. Parrillo, lived in Rome, and underwent in vitro fertilization (“IVF”) with her partner in 2002 at the Centre for Reproductive Medicine at the European Hospital in Rome (the “Centre”).17 Ms. Parrillo had intended to use the embryos to become pregnant, and start a family.18 However, shortly after the IVF process was completed, but before the embryos could be implanted, Ms. Parrillo’s partner passed away.19 Without her partner, Ms. Parrillo decided against embryonic implantation.20 The five embryos that resulted from the IVF process were placed in cryopreservation.21 Ms. Parrillo requested several times that the embryos be released and donated to scientific research, and she wrote a letter in 2011 explicitly stating this request.22 The Centre’s director refused to release the embryos for scientific research on the “grounds that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004.”23 The Centre kept the embryos in a cryogenic storage bank in order to preserve them.24
1 See Parrillo v. Italy, App. No. 46470/11, 2015 Eur. Ct. H.R., http://hudoc.echr.coe.int/ eng?i=001-157263.
2 Id. at 1–3.
3 Id. at 1; Convention for the Protection of Human Rights and Fundamental Freedoms, protocol art. 1, Nov. 4, 1950, 213 U.N.T.S 262 (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”).
4 Parrillo, 2015 Eur. Ct. H.R. at 1; Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S 230 [hereinafter ECHR Article 8] (“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”).
5 Parrillo, 2015 Eur. Ct. H.R. at 1.
6 Legge 19 febbraio 2004, n. 40, G.U. Feb. 24, 2004, n. 45 (It.).
7 Art. 117 Costituzione (It.) (“Legislative power is exercised by the State and the Regions in compliance with the Constitution and the constraints deriving from EU legislation and international obligations.”); Parrillo, 2015 Eur. Ct. H.R. at 6.
8 Parrillo, 2015 Eur. Ct. H.R. at 7 (quoting Corte Cost. 24 ottobre 2007, n. 348 (It.). See Convention for the Protection of Human Rights and Fundamental Freedoms art. 32, Nov. 4, 1950, 213 U.N.T.S. 222, amended by Protocol 11 of Nov. 1, 1998, 155 E.T.S. 5 (“(1) The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. (2) In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.”). See also Art. 117 Costituzione (It.).
9 Parrillo, 2015 Eur. Ct. H.R. at 27.
10 Id. at 46–47.
11 See infra Part IV and accompanying footnotes.
12 See infra Part III and accompanying footnotes.
13 See infra Part IV and accompanying footnotes.
14 Parrillo, 2015 Eur. Ct. H.R. at 27.
15 Id.
16 See Gregor Puppinck, Major ECHR Ruling: Human Embryos Are Not Things, Destruction May Be Prohibited, ACLJ, http://aclj.org/pro-life/major-echr-ruling-humanembryos-are-not-things-destruction-may-be-prohibited (last visited Nov. 22, 2015).
17 Id. at 3.
18 Id. at 34.
19 Id. at 3.
20 Id.
21 Id.
22 Id.
23 Id.
† B.A. 2011, Lynchburg College; J.D. 2016, Regent University School of Law.
†† B.A. 2012, University of Virginia; J.D. 2016, Regent University School of Law.