It is widely agreed that the European Union has no competence to address sensitive ethical questions, which are thought to be reserved exclusively to the Member States. Yet EU law regulates one of the most delicate areas of bioethics: human reproduction. EU fundamental rights law prohibits eugenics and reproductive cloning, and EU legislation further prohibits heritable genome editing.
The Prohibition on Eugenics and Cloning Under EU Law offers a new account of these puzzling prohibitions. First, it situates their emergence within a high-water mark of EU bioethics activity between 1994 and 2004. They are not the fruit of inevitable developments in human rights law, but rather of context, contestation, and historical contingency. The subsequent ebb of EU engagement explains why bioethics is now widely regarded as a purely national concern. Second, the book demonstrates that these prohibitions not only remain good law, but are potentially powerful provisions with significant constitutional implications.
As genetic selection and editing rise in human reproduction, these forgotten but potent prohibitions confront the EU legislature with a dilemma. The final chapter of the book identifies and develops three paths open to legislators to respond to this: (1) leave the prohibitions as they are, thereby ceding authority to the Court of Justice; (2) restrain them, returning power to the Member States; or (3) enact new legislation clarifying and implementing these constitutional prohibitions, thereby shaping the future of human reproduction and contributing to the construction of the EU's rights, values, and identity.
Alongside addressing the EU's reproductive prohibitions comprehensively for the first time, this study offers a revised history of EU biolaw, contributes to the interpretation of fundamental rights, and highlights the continuing— if complex and constrained— agency of legislators to shape the future of Union constitutional law.
