La sentenza della Corte europea di giustizia del 18 ottobre 2011 e la nozione di embrione in senso ampio

The article deals with the European Court of Justice’s decision on October\r\n18th 2011 (C-34/10, Brüstle vs Greepeace e. V.) and it shows importance, limits\r\nand desirable consequences of it. Three explanatory issues regarding the article\r\nno. 6 of the directive on the legal protection of biothecnological inventions\r\nare object of this decision. The most important among them concerns\r\nwith the notion of human embryo. The Court states that: “any human ovum after\r\nfertilization, any non-fertilized human ovum into which the cell has been\r\ntransplanted and any non-fertilized human ovum whose division and further\r\ndevelopment have been stimulated by parthenogenesis, constitute a human embryo”.\r\nTherefore, procedures using human embryos or which implies the destruction\r\nof human embryos are not patentable.\r\nThe contest of the decision concerns exactly patent field and the point no.\r\n31 states: “It must be borne in mind, further, that the meaning and scope of\r\nterms for which European Union law provides no definition must be determined\r\nby considering, inter alia, the contest in which they occur and the purposes\r\nof the rules of which they form part”.\r\nDespite of this clear limit, the decision is positive beyond patent matter.\r\nThe ethical judgment could not be ignored outside patent field, involving the\r\nEuropean research programs too: economic incentives should not be allocated\r\nfor those researches that destroy human embryos. On the other hand, research\r\non adult human stem cells should be implemented.\r\nFinally, after the Treaty of Lisbon, we should consider the possible influence\r\non the European Court of Human Rights.