In what is set to be a landmark judgement, the Strasbourg based European Court of Human Rights held that an Italian ban that prevented a couple of healthy carriers of a genetic disease (cystic fibrosis) from screening embryos for in vitro fertilisation was in violation of their right to respect for their private and family life. (Costa and Pavan vs Italy, application 54270/10 – Judgement of 28th August 2012 not yet final).
The couple in question had already had one child. It was through this child that they found out that they were both healthy carriers of the disease cystic fibrosis . Italian law prohibits “PID” (preimplantation diagnosis) and therefore the couple would be unable to go through a pregnancy without first ensuring that the new child would not suffer from the dangerous and fatal disease of cystic fibrosis.
From the ECHR press release:
Relying on Article 8 (right to respect for private and family life), the applicants complained that the only course open to them to have a baby that did not have cystic fibrosis was to start a pregnancy by natural means and medically terminate it every time the foetus tested positive for the disease. Under Article 14 (prohibition of discrimination), they claimed that they were victims of discrimination compared with sterile couples or those where the man had a sexually transmissible disease.
The application was lodged with the European Court of Human Rights on 20 September 2010. At the applicants’ request, on 4 May 2011 it was decided to give the case priority (Rule 41 of the Rules of Court). The European Centre for Law and Justice (ECLJ), the “Movimento per la vita” association and 52 Italian MPs, as one third party intervener, and the “Luca Coscioni”, “Amica Cicogna Onlus”, “Cerco un bimbo” and “L’altra cicogna” associations, together with 60 Italian and European MPs, as another third party intervener, were authorised to submit written observations (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of
Court).
The Court considered that the applicants’ desire to resort to medically-assisted procreation and PID in order to have a baby that did not suffer from cystic fibrosis was a form of expression of their private and family life that fell within the scope of Article 8. The fact that the law did not allow them to proceed in this manner therefore amounted to an interference with their right to respect for their private and family life which was “in accordance with the law”5 and pursued the legitimate aims of protecting morals and the rights and freedoms of others.
The Italian Government justified this interference by the need to protect the health of the mother and child and the dignity and freedom of conscience of the medical professions, and to avoid the risk of eugenic abuses. The Court observed first of all that the notions of “embryo” and “child” must not be confused. It could not see how, in the event that the foetus proved to have the disease, a medically-assisted abortion could be reconciled with the Government’s justifications, considering, among other things, the consequences of such a procedure for both the foetus and the parents, particularly the mother.
The Court stressed the difference between this case, which concerned PID and homologous insemination, and that of S.H. v. Austria, which concerned access to donor insemination. Furthermore, although the question of access to PID raised delicate issues of a moral and ethical nature, the legislative choices made by Parliament in the matter did not elude the Court’s supervision. The Court noted that of the 32 Council of Europe member States whose legislation it examined, PID was only prohibited in Italy, Austria and Switzerland (regulated access to PID was currently being examined in Switzerland).
The Court observed that the inconsistency in Italian law – prohibiting the implantation of only those embryos which were healthy, but authorising the abortion of foetuses which showed symptoms of the disease – left the applicants only one choice, which brought anxiety and suffering: starting a pregnancy by natural means and terminating it if prenatal tests showed the foetus to have the disease. The Court accordingly considered that the interference with the applicants’ right to respect for their private and family life was disproportionate, in breach of Article 8.
Article 14
Discrimination, within the meaning of Article 14, meant treating persons in similar situations differently without an objective and reasonable justification. Here the Court noted that, where access to PID was concerned, couples in which the man was infected with a sexually transmissible disease were not treated differently to the applicants, as the prohibition applied to all categories of people. This part of the application was therefore rejected as being manifestly ill-founded.
Just satisfaction (Article 41)
The court held that Italy was to pay the applicants 15,000 euros (EUR) in respect of nonpecuniary
damage and EUR 2,500 in respect of costs and expenses.
I read through Mgr Said Pullicino’s fire and brimstone sermon before the assembled judiciary and other representatives of the legal profession with the patience of a Job tried and tested. Earlier in the day I had published my initial reaction on the blog and for the benefit of those who are lucky enough not to yet have the words reverberating in their ears, I shall translate what LorSignor Said Pullicino (Their Sir – definitely not mine) said:
“Before such a clear doctrine of its Teacher (aka Jesus of Nazareth) the Church has nothing to discuss about divorce and the introduction thereof. She (the Church) must limit herself to teaching that whosoever cooperates in any way with the introduction of divorce into the laws of Malta, whosoever applies the law of divorce and whosoever makes recourse to such a law (not being the innocent party), is breaking the Law of God and therefore will be committing a grave sin (ghalhekk ikun qed jidneb b’mod gravi).”
My initial reaction was simple: The Church, being a private institution (even though we are press-ganged into its membership at a moment in life when we cannot raise much objections), is within its rights to determine the parameters of what constitute bonus points towards an eternity of roasting in hell in the egregious company of infidels. True. There are no two ways to go about that. This is no democracy – it is a Universal Catholic Top Heavy Illumination claiming that its dogmas and precepts are inspired by the Old Man in the Sky. Since the witch doctors, druids and augurers of the past, this has been an absolute unqualified condition of religious authority and it is not up to mere mortals to contradict that.
I bow my head low (as low as is politely possible) to such authority over their flock of fervent followers as I would bow my head to the authority of whatever religious leader has over his particular flock. When Said Pullicino does his pick’n’mix selection of biblical tracts and papal encyclicals in order to substantiate the conclusion that the Catholic Church reaches in this particular corner of the world, I cannot be bothered to cross-refer him to other similar collective quotations used by other denominations to reach dramatically different conclusions since I already know the retort that lies in such a battleground, and it involves diabolical citation of scriptural writings.
The Books of Our Judges
Sure. We cannot interfere in Said Pullicino’s expounding of Catholic dogma – nor can we question his absolute statement, which rules out any form of discussion with the Catholic Church on divorce. It’s their problem. “Their” being Catholics. The problem is that gathered before Said Pullicino was no ordinary flock but the representatives of our legal community (oops I almost said brotherhood) gearing up for the opening of another Forensic Year. I am told that such gathering is by invitation and does not form part of the official events of the legal fraternity so presence at such a gathering was optional.
Having said that, I do find it jarring that a symbol of the wisdom of the secular state and a group of people representing one of the main institutions that guarantee the balance of power in the land gather so forcefully before a particular confession to the point that the speaker from the pulpit could claim that “The tradition in the Church that at the beginning of the judicial year, the Judges and the Administrators come to the Altar to request the help of God, the Holy Spirit, in order that he can help them in their ministry (his words not mine) of administration of justice began in the Middle Ages”. So that’s it then? They gather for the sake of perpetuating tradition, right?
The eminent LorSignor goes on to expound the principle of illuminated decision implying that secular law is really an expression of Natural Law (the Law of God expressed by man in recognition of His Justice) and that such service as is given by administrators of justice is in order to put into effect this natural law for the COMMON GOOD. What follows is a rambling about no man being an island and then a warning of the dangers of a secular society. The cheek. The absolute gall. He WAS speaking to representatives of the state with a duty to apply the laws of that secular state when sitting at the bench.
LorSignor went on to attack the consequences of certain “secularisation” and lists the offending laws with the usual confusion of evils (divorce, abortion, homosexuals) that benefits those who have already ruled out any discussion on any one of them. Which is why he concludes the first part of the Sermon and the Rant with the unequivocal condemnation of collaborators with an eventual law on divorce to the status of “committers of grave sins”. Speaking to an assembled congregation of servants of the Constitution, he actively urges them to break the law by not performing their duty before the law.
And my reaction to that was simply: resign. Not Said Pullicino, but the judges called upon to refuse to administer the law of the land. Should they decide to do so then their position is untenable. We cannot have “conscientious objectors” sitting on our benches in court. We cannot have servants of the law subjecting their discretion to their moral values. Should a judge decide that Said Pullicino’s brand of Catholicism is also his then he is free to do. What he is not free to do is to usurp the workings of a secular state with the morals of a Church that dwells in Middle Age traditions.
The Satanic Versions
What Said Pullicino fails to notice is that having judges sitting on secular courts but applying religious principles above secular law is equivalent to the final admission that this state of ours has succumbed to the Catholic Version of Sharia Law. Which is worrying. Because what will stop Said Pullicino from reviving Mosaic Law in his next Medieval Traditional Sermon next year? And what will he stop at exactly? Given the propensity to confuse adultery with divorce, and given the willingness to throw divorce, homosexual marriage and abortion in the same basket, what will stop LorSignor reminding next years’ legal beavers listening in to his rant that Leviticus 18:22 was confirmed by Paul the Tourist in 1 Corinthians 6:9 and Romans 1:28?
What was that about? I’ll tell you what that was about. Here’s Leviticus: “Thou shalt not lie with mankind, as with womankind: it is abomination.” And here’s Corinthians: “Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.” What guarantee does Said Pullicino give the secular members of this state that homosexuality will not become his next pet inspiration and anathema? And if it will not? Why not?
strong>To’ebah (abomination)
All is not lost though and it is important to keep matters in perspective. Others have begun to react to this Medieval Speech – Here’s what just-retired Judge Philip Sciberras had to say: “I am a practising Catholic but I believe the state is obliged to regulate such situations by introducing laws. Members of the judiciary should not object to hear divorce cases because of some medieval imposition.” Michael Falzon (of the Constructor’s Association) pointed out the apparent contradictions in Roman Catholic practices in his blog on MaltaToday (“The Tribe that lost its head”, Friday 8 October) and I.M. Beck also had something to say as to the insensitivity of some arguments.
The truth of the matter is that much as we might find it interesting to try to “convince” the Church and its flock of the politically and democratically heretic nature of this latest intervention, we might as well be arguing with a gagged, blindfolded and deaf monkey. Said Pullicino told us that clearly: “the Church has nothing to discuss”. And so be it. In doing so the Church (in the guise of Said Pullicino) is also abdicating its tradition of social contribution that started in the early 1800s.
I count myself among those who argue in favour of a social role of the Church in discussions about family, social cohesion and solidarity. What I refuse to consider is the Church of indulgences, fire and brimstone, mortal sin and whatever other superstition it chooses to revive. By shifting the argument from social participation as a peer with valid experience in society to the field of supernatural abomination and fear, the Church does not only not wish to discuss but it also finds itself in a position when it stops being anybody with whom it is worth discussing. The Church has abused the supernatural before to meddle with the secular – remember the abuse of the Fear of Mortal Sin in the 60s when reading a newspaper could win you a timeshare in hell?
Kill your idols
This is a secular society at the start of the 21st century. We are proud members of a wider community that recognises basic fundamental rights as being the foundation of harmonious living in which society strives towards a common good. These include respect for the dignity of man, the right to life, the right to integrity of the person, the right to private life and to a family and the right to marriage and the founding of a family. This society believes in freedom of thought, conscience and religion and believes that we are all equal before the law, which is why it is founded on the principles of non-discrimination and recognises cultural, religious and linguistic diversity.
This society has enshrined such principles as solidarity, equality and justice in its basic tenets and now, thanks to the Charter on Fundamental Rights within the European Union, we have added an extra cushion and guarantee to these rights and principles. The preamble to the Charter states that: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.” The ultimate aim is a future of peace based on common values.
Given the choice between the comfort of secular law inspired by the common fundamental values of mankind and the volatile superstitions of the Catholic imposition I know where my heart lies. What I do find disappointing is the abdication of responsibilities by the majority of our political leaders. It is evident that they are biding their time – unable to really fathom which way the wind is going to blow in the end. They have been dealt quite a blow by Said Pullicino since any MP voting for the law will surely be branded a “co-operator” and public sinner – so a huge big up (well done) to Pullicino Orlando for continuing his crusade. It is not a sinful crusade. It is a crusade to grant a civil right and possibility to numerous individuals who would love a second, civil chance at marriage. No amount of Taliban-like rhetoric should prevent that right from being enacted at law and applied in the courts of our land.
Pauline Privilege
I had not heard of the Pauline Privilege until the whole ruckus began. Look it up – it is an interesting, exceptional circumstance that relates to ‘pagans’ (who incidentally don’t only live in the African bush). It is an interpretation of another of Paul the Tourist’s letters (1 Corinthians 7:10-15) and is interpreted “as allowing the dissolution of a marriage contracted between two non-baptized persons in the case that one (but not both) of the partners seeks baptism and converts to Christianity and the other partner leaves the marriage”. In that case the Church is perfectly happy to recognise the divorce for the sake of greater proselytising.
Pauline Privilege or no Pauline Privilege, we are not meant to be discussing the contradictions of the Church. The issue at stake is the secular laws and their application. There is no doubt that Said Pullicino’s faux pas has not contributed in any good way to the issue of the introduction of divorce. When I say faux pas I repeat that this is not in any way a judgement on the beliefs and interpretations of the religious institution but on its evident intent of holding the servants of the state in a moral blackmail and preventing them from performing their duty.
It is in that sense that we risk being damned as a nation. Condemned to the damnation of the imposition of the beliefs and values of the few over the laws for and by the many. It is, in its own way, another watershed in the defining of this young nation of ours.
www.akkuza.com is recovering from a savage bout of the common cold and flu.
