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.