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Reproductive rights before the European Court of Human Rights: States' discretion or European supervision?

In recent times the European Court of Human Rights (ECtHR or Court) has issued a series of decisions concerning abortion and Medically Assisted Procreation (MAP). In light of significant technological progress in the field of medical practice, many questions regarding abortion and MAP choices arise.
The issue is particularly controversial for two main reasons:

1. Firstly, it involves different interests that may conflict between them. Indeed, these practices primarily concern not only the rights of the mother and of the unborn child, but have implications also on father's rights. Therefore, the following question arises: Whose rights should be given precedence?
2. Secondly, abortion and MAP are deeply linked to bioethical and morality issues. Morality has always been a debatable concept that implies multiple perspectives and consequently plural positions. Accordingly, also in this case another question arises. Which position should be considered the "right" one from an ethical point of view?

This dissertation has the main aim of analysing the question of abortion and MAP in the framework of protection of human rights guaranteed by the European Convention on Human Rights (ECHR or Convention) and as interpreted by the European Court of Human Rights. The Court, in dealing with abortion and MAP issues, has had to take into consideration these thorny questions. This has not been an easy task, considering the variety of European national legislations and moral stances in the field of reproductive rights.
The analysis of these questions will proceed as follows:
Chapter one illustrates the normative framework underpinning the protection of women's rights and those of the unborn according to the European Convention on Human Rights. It further focuses on the moral debates concerning respectively abortion and MAP.
Chapter two concentrates on the case-law of the ECtHR with regard to abortion. It analyses the Court's decisions with regard to this topic and with particular reference to Article 2 and Article 8 of the ECHR.
Chapter three focuses on the case-law of the Court with regard to MAP (in vitro fertilization, in vivo fertilization and surrogacy). Also in this case Art. 8 of the Convention will be the normative basis for the purposes of the analysis.
Finally, chapter four tries to give an answer to the questions posed by abortion and MAP in the light of Court's decisions in this field. Is there a "right to abortion"? Is there a "right to procreate"?
Moreover, the chapter deals with certain specificities that have emerged from the Court's approach towards abortion and MAP. The question about the effectiveness of the Court's role in the adjudication of reproductive rights will be further examined.

Mostra/Nascondi contenuto.
18 3. Between law, morality and bioethical issues The previous paragraphs have analysed the legal basis which the ECtHR has relied upon when dealing with questions regarding abortion and MAP. On the other hand, these issues imply profound moral and philosophical considerations concerning the beginning of life. These different positions are contextualised in an intense debate concerning bioethical 33 issues and are reflected in the different national legislation of the Member States of the CoE. For this reason, it is useful to try to understand the rationale which divides some states, while unifying others, in choices pertaining to the reproductive field. Early forms of ethical thinking related to health are traced back to antiquity 34 , while the modern/contemporary discipline has emerged during the 1970s, due to the technological improvements in the medical practice 35 . In this period issues concerning law and bioethics were raised. The relationship between these two disciplines is complex, since legal decisions concerning bioethics issues have to deal with the moral relativism of a given society. Therefore, in this framework bioethics has the twofold goal of detecting the profound reasons that guide moral beliefs and that of trying to build a consensus in highly differentiated societies governed by plural views in the field of morality. Thus, bioethics can be considered the "bridge" which links moral/philosophical stances and the norms that regulate the practices in this field 36 . The following paragraphs will analyse the principal moral stances which have guided European states in the regulation of matters concerning respectively the voluntary termination of pregnancy and the MAP. 33 Bioethics concerns the moral dilemmas stemming from the advances in medicine and scientific research. Indeed, the term bio, meaning life, combined with ethics tries to determine the "right" or "wrong" moral conduct with regard to life and death issues. This dissertation will not concentrate on the so-called death issues (euthanasia), but only on the beginning-of-life issues. 34 The first forms of ethical thinking are dated back to the Hippocrates "oath" (V-III century BCE), whose main principle was "First, do no harm". After the arrival of Christianity, the oath was modified in order to adapt it to the principles promoted by the Christian faith, such as compassion and charity. The first modern forms of ethical thinking arose during the Enlightenment period and the secularization process. For a deeper description of the history of the ethical thinking see: Freeman Michael, Law and Bioethics: Constructing the Inter-Discipline, in Freeman Michael (ed.), Law and Bioethics: Current Legal Issues, 2008, Vol. 11, pp. 1- 11. 35 Nowadays the influence of the past is still vivid and physicians operating in the bioethical field should respect the maxim "priumum non nocere". See Brownsword Roger, Bioethics: Bridging from Morality to Law?, in Freeman Michael (ed.), Law and Bioethics: Current Legal Issues, 2008, Vol. 11, p. 14. 36 In Brownsword's wording, there are a "number of competing master criteria of rightness". The author in his discussion endorses the conclusions presented in the Nuffield Council on Bioethics' report: "Critical Care Decisions in Fetal and Neonatal Medicine: Ethical Issues". Ibid. pp. 13-15.

Laurea liv.II (specialistica)

Facoltà: Scienze Politiche

Autore: Erisa Taraj Contatta »

Composta da 139 pagine.


Questa tesi ha raggiunto 17 click dal 19/07/2016.

Disponibile in PDF, la consultazione è esclusivamente in formato digitale.