The case of S.K. and G.P. v. Italy. Views of the Committee on Economic, Social and Cultural Rights dated March 7, 2019 Communication No. 22/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Italy.
From the Committee's point of view, the prohibition on revoking consent to transfer an embryo into the uterine cavity constituted a violation of the right to health, since it could lead to forced medical intervention or even forced pregnancy. This prohibition affected the very essence of the right to health and went beyond the limitations that would be justified in accordance with article 4 of the International Covenant on Economic, Social and Cultural Rights. This prohibition, or at least the ambiguity regarding the existence of this prohibition, was the reason for the author's inability to access the in vitro fertilization procedure. Consequently, the Committee considered: This restriction is incompatible with the nature of the right to health and that the facts presented to him indicated a violation of article 12 of the International Covenant on Economic, Social and Cultural Rights in respect of both authors.
As seen from the text of the Considerations, in 2008, the authors of the communication applied to a private clinic in Italy specializing in assisted reproductive technologies for help in conceiving a child. The first cycle of in vitro fertilization was performed. The authors of the message asked the clinic that at least six embryos be obtained through in vitro fertilization, that preimplantation genetic diagnostics be carried out to identify possible "genetic disorders" and that embryos with identified disorders are not inserted into the uterine cavity of S.K. The clinic's specialists refused to satisfy these requirements because they contradicted Law 40/2004. The authors claimed that two cycles of in vitro fertilization had passed: the first with three embryos, each of which had hereditary multiple osteochondromes and which therefore were not transferred to the uterus of S.K., and the second, during which ten embryos were created, of which only one did not have hereditary multiple osteochondromes, but because ofdue to its "average quality", it was unlikely that it would continue to develop in the uterus. She refused to transplant an embryo of "average quality", but was informed that she could not withdraw her consent to transfer the embryo into the uterus under threat of legal proceedings. Fearing this threat, S.K. was forced to agree to the implantation of an embryo, but subsequently she suffered a miscarriage. The remaining nine embryos were cryopreserved.
The Committee's assessment of the factual circumstances of the case: the authors' first complaint under article 12 of the Covenant has been taken into account, namely that S.K.'s right to health was violated when an embryo was planted against her will. The Committee noted: as a result, S.K. suffered a miscarriage, which was a traumatic experience for her. The Committee concluded that, in the circumstances of the present case, the facts presented to it constituted a violation of S.K.'s right to health, as enshrined in article 12 of the Covenant (paragraph 10.1 of the Views).
The implantation of an embryo into the uterine cavity of S.K. without her real consent was a violation of her right to the highest attainable standard of health and her right to gender equality in the exercise of the right to health, as well as a violation of article 12, considered separately and in conjunction with article 3 of the Covenant (paragraph 10.3 of the Views).
The Committee noted the authors' second complaint regarding article 12 of the Covenant: the uncertainty created by law as to whether consent to implantation could be withdrawn after fertilization prevented them from conceiving a child again, which is a violation of their right to health. As the authors of the communication demonstrated, S.K. was unable to withdraw her consent after fertilization, and the authors had reason to fear that they might face a similar situation if they tried to resort to artificial insemination again. Therefore, the Committee recognized that the authors of the communication did not have access to in vitro fertilization. The Committee considered that it followed from this: Law 40/2004 imposes a restriction on the authors' right to health, since it prevents their access to medical care available in the State party (paragraph 11.1 of the Views).
The Committee concluded that the prohibition on revoking consent to transfer an embryo into the uterine cavity constituted a violation of the right to health, as it could lead to forced medical intervention or even forced pregnancy. This prohibition affected the very essence of the right to health and went beyond the limitations that would be justified under article 4 of the Covenant. This prohibition, or at least the ambiguity regarding the existence of this prohibition, was the reason for the author's inability to access the in vitro fertilization procedure. Consequently, the Committee considered that this restriction was incompatible with the nature of the right to health and the facts presented to it showed a violation of article 12 of the Covenant in respect of both authors (paragraph 11.2 of the Views).
The Committee noted that most of the concerns raised by the authors in their application related to the ambiguity and possibly even inconsistency of the norms in force in the State party with regard to in vitro fertilization and possible research on embryos and stem cells. This ambiguity was partly explained by the fact that Law 40/2004, adopted in 2004, underwent important but fragmentary changes as a result of a number of decisions of the Italian Constitutional Court. In addition, the Committee stressed that the views of society in this area have undergone significant changes, science and technology are in the process of constant development. For these reasons, States should regularly update their rules in order to bring them in line with their human rights obligations and the evolution of society and scientific progress (paragraph 11.4 of the Considerations).
The Committee's conclusion: the prohibition on revoking S.K.'s consent to transfer an embryo into the uterus and restricting both authors' access to reproductive rights was a violation of article 12 of the Covenant in respect of both authors and article 12, considered in conjunction with article 3 of the Covenant, in respect of S.K. (paragraph 12.1 of the Views).