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Bioethics and the Case-Law of the Court

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Bioethics and the Case-Law of the Court RESEARCH REPORT _______________________ Bioethics and the case-law of the Court Publishers or organisations wishing to reproduce this report (or a translation thereof) in print or online are asked to contact [email protected] for further instructions. © Council of Europe/European Court of Human Rights, 2016 This report has been prepared by the Research and Library Division (in English only), under the supervision of the Department of the Jurisconsult, and does not bind the Court. The first version of the report was finalised in September 2009. An updated version was produced in May 2012 and the present version has been updated up to and including 20 October 2016. This report is available for downloading at www.echr.coe.int (Case-law – Case-Law Analysis – Research Reports). For publication updates please follow the Court’s Twitter account at https:/twitter.com/echrpublication. SUMMARY For the purposes of this report the term “bioethics” has been understood to encompass the protection of the human being (his/her human rights and in particular human dignity) in the context of the development of biomedical sciences. Specific issues arising in relation to this term and which are addressed in the report include reproductive rights (prenatal diagnosis and the right to a legal abortion), medically assisted procreation, assisted suicide, consent to medical examination or treatment, ethical issues concerning HIV, the retention of biological data by the authorities and the right to know one’s biological identity. These complex issues are increasingly being raised before the European Court of Human Rights, and we can perhaps expect more applications concerning subjects such as gene therapy, stem cell research and cloning in the future. The cases cited raise important questions and often highly sensitive issues under Articles 2, 3, 5, 6 ‒ and most often Article 8 ‒ of the European Convention on Human Rights. Cases updated in the second version of 21 May 2012 are indicated with a double asterisk in bold “**”. Updated cases and new cases which did not appear in the previous reports are indicated with a triple asterisk in bold “***”. References to the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997 (ETS no. 164), and/or the work of the Council of Europe in this area, can be found in a number of cases decided by the European Court of Human Rights. − 3/114 − TABLE OF CONTENTS I. Examples of cases in which bioethical issues have been raised ....................................... 7 A. Reproductive Rights .................................................................................................................................. 7 (1) Pre-natal diagnosis ................................................................................................................................ 7 Draon v. France [GC] (merits), no. 1513/03, judgment of 6 October 2005 .......................................................................... 7 ***A.K. v. Latvia, no. 33011/08, judgment of 24 June 2014 ............................................................................................... 8 (2) Right to a legal abortion ........................................................................................................................ 9 ***Bosso v. Italy, no. 50490/99, decision of 5 September 2002 .......................................................................................... 9 D. v. Ireland, no. 26499/02, decision of 27 June 2006 ........................................................................................................ 10 Tysiąc v. Poland, no. 5410/03, judgment of 20 March 2007 .............................................................................................. 11 **A, B, and C v. Ireland [GC], no. 25579/05, judgment of 16 December 2010 ................................................................. 13 **R.R. v. Poland, no. 27617/04, judgment of 26 May 2011 ............................................................................................... 14 ***P. and S. v. Poland, no. 57375/08, judgment of 30 October 2012 ................................................................................. 15 ***Z v. Poland, no. 46132/08, judgment of 13 November 2012 ........................................................................................ 16 (3) Right to give birth at home ................................................................................................................... 17 ***Ternovszky v Hungary, no. 67545/09, judgment of 14 December 2010 ....................................................................... 17 ***Dubská and Krejzová v. Czech Republic, nos. 28859/11 and 28473/12, Chamber judgment of 11 December 2014, case pending before the Grand Chamber .................................................................................................................................... 17 ***Kosaitė - Čypienė and others v. Lithuania, no. 69489/12, communicated on 20 December 2012 ................................. 18 Pojatina v. Croatia, no. 18568/12, communicated on 16 February 2015............................................................................. 18 B. Medically assisted procreation ................................................................................................................ 19 Evans v. the United Kingdom [GC], no. 6339/05, judgment of 10 April 2007 ................................................................... 19 Dickson v. the United Kingdom [GC], no. 44362/04, judgment of 4 December 2007 ........................................................ 21 **S.H and Others v. Austria [GC], no. 57813/00, judgment of 3 November 2011 ............................................................. 24 ***Knecht v. Romania, no. 10048/10, judgment of 2 October 2012 .................................................................................. 25 ***Costa and Pavan v. Italy, no. 54270/10, judgment of 28 August 2012 ......................................................................... 25 ***Parrillo v. Italy [GC], no. 46470/11, judgment of 27 August 2015 ............................................................................... 26 Nedescu v. Romania, no. 70035/10, communicated on 6 November 2012 ......................................................................... 27 C. Children born through surrogacy arrangements*** ............................................................................ 27 ***D. and Others v. Belgium, no. 29176/13, decision of 8 July 2014 ................................................................................ 27 ***Mennesson v. France, no. 65192/11, judgment of 26 June 2014, ECHR 2014, and Labassee v. France, no. 65941/11, judgment of 26 June 2014 .................................................................................................................................................. 28 ***Foulon and Bouvet v. France, nos. 9063/14 and 10410/14, judgment of 21 July 2016 ................................................. 29 ***Paradiso and Campanelli v. Italy, no. 25358/12, Chamber judgment of 27 January 2015, case pending before the Grand Chamber .................................................................................................................................................................. 30 ***Karine Laborie and Others v. France, no. 44024/13, communicated on 16 January 2015 ............................................ 31 D. Assisted suicide ......................................................................................................................................... 31 Sanles Sanles v. Spain, no. 48335/99, ECHR 2000-XI, decision of 26 October 2000 ........................................................ 31 Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, judgment of 29 April 2002 .................................................. 33 **Haas v. Switzerland, no. 31322/07, judgment of 20 January 2011 ................................................................................. 34 ***Jack Nicklinson v. the United Kingdom and Paul Lamb v. the United Kingdom, nos. 2478/15 and 1787/15, decision of 23 June 2015 ...................................................................................................................................................................... 35 Koch v Germany, no. 497/09, judgment of 19 July 2012 ................................................................................................... 36 ***Gross v. Switzerland [GC], no. 67810/10, judgment of 30 September 2014 ................................................................ 37 E. Consent to medical examination or treatment ...................................................................................... 38 (1) General issues of consent ..................................................................................................................... 38 Hoffmann v. Austria, no. 12875/87, judgment of 23 June 1993, Series A no. 255-C ......................................................... 38 Glass v. the United Kingdom, no. 61827/00, ECHR 2004-II, judgment of 9 March 2004 .................................................. 39 Jalloh v. Germany [GC], no. 54810/00, judgment of 11 July 2006..................................................................................... 41 Bogumil v. Portugal, no. 35228/03, judgment of 7 October 2008 ...................................................................................... 44 **M.A.K. and R.K. v. the
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