This is the only reasoning that can explain why other State Parties of the Convention have prohibited certain techniques of assisted fertilization which are very similar to those which the Constitutional Chamber of the Supreme Court of the State had in mind when issuing the Decision that originated this case. This is so, even though these prohibitions could, at some point, be perceived as infringing some of the rights that the Court considers that were violated by the State. The ultimate reason why the aforementioned Chamber of the Supreme Court declared the Decree unconstitutional and contrary to Article 4(1) of the Convention, is because the embryo “cannot be treated as an object for investigation purposes, be submitted to selection processes, kept frozen and, the most essential point for the Chamber, it is not constitutionally legitimate to expose it to a disproportionate risk of death.” 95 These reasons were also suggested by three Member States when forbidding assisted fertilization “for purposes other than human procreation;” by one of them when establishing that “the commercialization of biological material is a crime;” and by another of them when prohibiting “the freezing of embryos for deferred transfer.” Nevertheless, one of the previously referred States and another one allow the “the cryopreservation of embryos, spermatozoids and eggs.” 96 Finally, it must be pointed out that the Judgment makes no reference in its operative paragraphs to Article 4(1). This may happen because the Judgment dismisses the allegation regarding this Article. Nevertheless, the Court makes no reference—as it has previously done—to whether it is unnecessary to refer to this Article, or to whether the State is responsible for the alleged violation or is, on the contrary, blameless. FINAL CONSIDERATIONS When this dissenting opinion stated the reason why it disagreed with the Judgment, it tried to underline the importance of this case, where what is at stake is nothing less than the understanding of the “right to life” and of when does life begin. Strictly speaking, when a juridical provision on this issue is drafted, many legitimate material sources of international law come into play; not only juridical notions, but also philosophical, moral, ethical, religious, ideological, scientific and others. Once the juridical provision is in force, however, it can only be interpreted in accordance with the formal sources of international law. The Court has limits when exercising its interpretive function. This cannot be denied. Other jurisdictional bodies have already highlighted the difficulty—and even the inappropriateness—of deciding an issue which is within the realm (although not exclusively) of medical science, an issue regarding which there is still no consensus, even in this particular field. 97 Nevertheless, in spite of these difficulties, the Court has had to fulfill its duty and decide the issue that was brought forth. This, however, does not exempt the States from fulfilling their own duty, which in this case is to exercise their normative function in the way they deem best. If they fail to do so, there is the risk that—as it somewhat happens in this case—the Court may not only decide on these issues, which require a 95 Para. 76. 96 Para. 255. 97 Para. 185 and note 283.

Seleccionar párrafo de destino3