In 2008, the couple at the centre of the case, visited a fertility clinic in Italy and requested in vitro fertilization treatment, or IVF, where the egg is fertilized outside the mother’s womb. They asked the clinic to test for possible genetic disorders, before implantation.
They were told that the law prohibited clinical research on human embryos, so the couple filed and won a lawsuit, which ordered the clinic to carry out pre-implantation genetic testing, but the case was referred the matter to Italy’s Constitutional Court.
Meanwhile, it was discovered that the embryos produced by the woman were in fact all affected by hereditary bone deformation and consequently not transferred to the woman’s uterus.
In 2009, the couple tried again. While one of six embryos tested was free of the disorder, it was graded “average quality” with little chance of success.
Fearing a miscarriage, the woman tried to withdraw her consent to transfer the embryo, but the clinic insisted that according to the law, once fertilization took place the embryo must be implanted in the uterus, or she would face legal consequences.
Because of this threat, she agreed to the procedure and later suffered a miscarriage.
The Committee’s 18 independent human rights international experts deal with cases in countries that have signed on to the International Covenant on Economic, Social and Cultural Rights, which Italy ratified in 1978.
After Italian courts refused to hear their case, the woman and man together took it to CESCR, which is mandated to receive complaints from individuals who have no other legal recourse in their countries of origin.
Back in 2016, CESCR informed the States parties that sexual and reproductive health “entails a set of freedoms” that include “the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health.”
The Committee noted that Italian law restricted the woman’s right to take back her consent, which in the case in question, had led to a forced medical intervention and eventually a miscarriage.
They specified that transferring an embryo to the woman’s uterus without her valid consent constituted “a direct violation” of her human right to the highest attainable standard of health and her human right to gender equality.
Pointing out that States parties to the Covenant are under an international legal obligation to comply with the Committee’s findings in individual complaint cases, CESCR called for Italy to compensate the couple, ensure their access to IVF treatment without fear of forced medical intervention and adopt measures necessary to guarantee that all women are free to decide medical intervention affecting their bodies.
Moreover, Italy should ensure women’s rights to withdraw their consent to the transfer of embryos to their uterus. The experts requested Italy respond within six months to the Committee and explain how the country would be implementing its ruling.