Union humans? : the EU’s prohibitions on eugenics, reproductive cloning and heritable genome editing

Abstract

This thesis exposes and explores the disconnection between the strong legal and constitutional potential of the EU’s reproductive prohibitions (on eugenics, reproductive cloning and heritable genome editing) and the political reality of bioethical subsidiarity. These prohibitions, contained in the Charter and in secondary law, are typically understood teleologically: as the result of international human rights law on the one hand, and as evidence of EU biolaw’s inexorable and continuing rise on the other. Based on legal historical and doctrinal analysis, this thesis proposes a new understanding. First, it shows that the prohibitions were enacted during the high-water mark of EU bioethics (1994-2004). Context, contestation and contingency, not inevitable inference from human rights, explain their emergence. Yet the tide has since subsided and bioethical subsidiarity now reigns. Second, it shows that the prohibitions are not only good law, but potentially very powerful. The classical interpretative techniques and the drafting history support a wide reading with constitutional ramifications. Third, it develops three paths open to the legislature. The legislature can remain inert, thereby ceding authority to the Court of Justice. It can restrain the prohibitions, repealing secondary law and seeking to limit primary law’s bite so as to return power to the Member States. Or it can take control itself by explicitly implementing the EU primary law prohibitions, thereby contributing to the construction of the EU’s identity. In developing these arguments, the thesis offers a revised history of EU biolaw as a whole. It also contributes to the history and interpretation of EU fundamental rights. Finally, it highlights the importance of rigorous historical analysis of EU law’s emergence. Alongside enriching our understanding and interpretation of that law, such analysis reveals the degree of agency that actors still enjoy – albeit in an entangled way – to write the future.