Following the birth of their first child, the applicants, Costa and Pavan, discovered that they were carriers of cystic fibrosis, a genetic disease. Their child was born with the disease. A prenatal test confirmed that their second child was also affected by cystic fibrosis. They decided to terminate the pregnancy on medical grounds.
The applicants sought to take advantage of Assisted Reproduction Technology (ART) and preimplantation genetic diagnosis (PGD) for the purposes of selecting an embryo unaffected by the disease. However, under Italian law, they did not have access to these techniques. ART was available only to sterile or infertile couples, as well as to couples in which the man suffers from a sexually transmissible viral disease that could be contracted by the woman or the fetus. There was a blanket ban on PGD.
The applicants argued that not having access to these techniques violated their right to respect for their private and family life (Article 8) and freedom from discrimination (Article 14) protected under the European Convention on Human Rights.
The Court outlined that “private life” under Article 8 is a broad concept that includes, among other things, the right to respect for the decision to become or not to become a parent, as well as the right to respect for the decision to become genetic parents. The Court found that “the applicants’ desire to conceive a child unaffected by the genetic disease of which they are healthy carriers and to use ART and PGD to this end attracts the protection of Article 8, as this choice is a form of expression of their private and family life.” The Court held that the legislative ban on PGD amounted to an interference which was lawful and pursued a legitimate aim of protecting morals and the rights and freedoms of others. However, the Court found that this interference was disproportionate given the inconsistency in the Italian legislation that on the one hand prohibited implantation limited to those embryos unaffected by the disease of which the applicants are healthy carriers and on the other hand allowed the applicants to terminate a pregnancy on medical grounds if the fetus is found to be affected by the disease. The Court thus found that there had been a violation of the applicants’ rights to respect for their private and family life.