Adelina Parrillo had sought to donate five embryos created for IVF treatment with her partner, who died in a bomb attack while reporting on the war in Iraq before any of the embryos were implanted. She had decided not to pursue a pregnancy and instead chose to donate the embryos to science to promote research into incurable diseases.
Italy prohibits research on human embryos, however, and Parrillo's requests for the embryos to be released were refused by the storage clinic. She sought to challenge this decision on the grounds that it violated her rights under Article 8 of the European Convention on Human Rights.
The Grand Chamber of the ECtHR ruled that although Article 8 was applicable in this case – as Parrillo's embryos contained her DNA and therefore constituted part of her identity and 'private life' – Italy had a wide margin of appreciation on human embryo research, which was of a sensitive and controversial nature and one on which there is no European consensus.
Furthermore, as the case did not involve parenthood, the court said it did not concern a crucial aspect of Parrillo's existence and concluded that the ban was 'necessary in a democratic society'.
It also noted that there was no evidence that Parrillo's partner had consented to the embryos being released for research. By 16 to one it held there was no violation of Article 8.
Dissenting, Judge András Sajó said that given the clear choices made by the applicant, the judgment lacked a proportionality analysis and that a wide margin of appreciation did not permit a government to act arbitrarily.
'The applicant's interest in donating her embryos to scientific research, rather than allowing them to remain unused, is a deeply personal and moral decision. This choice is driven by her desire to honour her late partner and to further invaluable medical research with the potential to save lives,' he said.
'The law disregards the interest in preventing actual human suffering through scientific research in the name of the protection of a potential for life which, moreover, cannot ever materialise in the circumstances of the case.'
Other aspects of Italy's law on assisted conception have been struck down both by its national courts and by the ECtHR. In April, Italy's constitutional court declared a ban on using donated gametes in fertility treatment was unconstitutional (reported in BioNews 750) and in 2012 a ban on screening embryos using PGD for cystic fibrosis was held to be in violation of Article 8 by the ECtHR (reported in BioNews 671).
However, in 2011 the ECtHR held that Austria's ban on the use of donated gametes was not a violation of Article 8 (see BioNews 641).