Object of property or human being? The status of the embryo before the Grand Chamber of the European Court of Human Rights (case of Parrillo v. Italy)

After the European Court of Human Rights (EHCR) (Second Section, 28 May 2013) declared partly admissible the case Parrillo v. Italy (Application n. 46470/11), the Grand Chamber will soon rule on this case, which has serious implications for the question of the legal status enjoyed by the human embryo. The appellant claimed that Article 13 of the Italian Law n. 40/2004 on medically assisted procreation, which bans the destruction of human embryos (including through scientific research), violated her “property rights” over the frozen embryos under the Article 1 of the Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and her “right to private life” under Article 8 of the same Convention. Are the embryos just pieces of property or are they human beings? This is obviously the core of the case discussed. The authors of this paper argue that in the light of scientific and legal bases the embryos originated from male and female gametes should be recognized as human beings. The analysis is conducted reviewing numerous dispositions, first of all the Article 18 of the Oviedo Convention on Human Rights and Biomedicine. Much space is given to the bioethics case-law of the ECHR regarding the doctrine of the margin of appreciation, which should be applied also to defend Italy in the case examined. Besides, it is showed in the paper, how the Italian Law n. 40/2004, which recognizes the embryo as a subject holder of rights (Article 1), is backed by an important normative complex. Thus the thesis of the inconsistency between the Law n. 40/2004 and Law n. 194/178 is clearly rejected. The authors also argue that it makes a well established scientific, ethical and legal sense to encourage science to focus rather on the research using human adult stem cells instead of human embryonic stem cells. Ultimately, what is written in the Article 2 (“Primacy of the Human Being”) of the Oviedo Convention (“The interests and welfare of the human being shall prevail over the sole interest of society or science”) should be set great store.