The Embryo at the European Court of Human Rights

Having a child by in vitro fertilisation (IVF) entails the creation of in vitro embryos, their transfer to a woman's uterus, a successful pregnancy, and live birth. Under the European Convention on Human Rights, using IVF principally engages the right to respect for private and family life under Article 8(1). The approach of the European Court of Human Rights (ECtHR) to the embryo is part of its jurisprudence regarding prenatal life, which it has considered under Article 8(2), including regarding the right to life under Article 2. Since an embryo currently needs a woman's uterus to have any chance of born life, questions about what legal status and claims to life it may have, if any, involve consideration of a woman's autonomy and bodily integrity interests under Article 8(1), and thus the legal relationship between the embryo and the woman – the central focus here. This paper principally identifies and analyses several problematic features of the ECtHR's jurisprudence regarding prenatal life as this relates to a woman, with particular reference to the embryo. It also considers the implications of a heightened concern for the embryo in a minority of States’ IVF laws, and in debates about heritable human genome editing.