MEĐUNARODNOPRAVNI MATERIJALNI ELEMENTI VLADAVINE PRAVA I OBIM REPRODUKTIVNIH USLUGA

Starting from the position that the basic purpose of the concept of rule of law is the protection of the individuals from the power of the State, the aim of this research is to examine if the principle of rule of law contains an element that could legitimize the restrictions of the scope of services in the field of reproductive medicine by the State. In particular, the object of this research is the question whether the right to life, as a substantive element of the rule of law encompassing negative as well as positive guarantees, can be used as an excuse for restrictive regulation of medical service of artificial gestation (ectogenesis). In a broader sense, it was examined if there was introduced any binding regional standards in Europe that would require from the Member State of Council of Europe to regulate service of artificial gestation as if it was an irrevocable process. If so, it would imply inability of progenitors – consumers, to withdraw from the process and suspend consumption of the service. Necessarily, the analysis also referred to the guarantees from the ambit of Article 8 of the European Convention as another substantive international legal element of the rule of law. The research was conducted using a descriptive method that describes the content of the right to life. Further, relevant guarantees and practices of the right to life protection were synthesized into possible claims - premises, which could amount potential basis for building a restrictive syllogism as a legal framework for the State intrusion in this area. These claims are the claim of the intentionality, the claim for equality, the claim of the conflict exclusion, the claim for viability. The conclusions of this research are that presumptive claims cannot provide excuses for the extension of the right to life to an ectoagent (an embryo that develops through ectogenesis) for the reasons explained below. With regard to the guarantees contained in Article 8 of the European Convention, above all autonomy, it has double effect. First, it disconnects ultimate demands of the progenitors from the Convention; second, it confers conditional right to life eligibility to ecto-agent. This research considered second stage of ectogenesis which commence with implantation. The intended originality of the analysis is to examine if the substantive elements of the rule of law from the scope of international human rights law, can be obstacles to the development of reproductive services.