One child and... actually how many parents did you say? - by José Ramos-Ascensão

In europeinfos

A “Comparative study on the regime of surrogacy in EU Member States”, commissioned by the Committee of Legal Affairs, has recently been presented at the European Parliament; whereas, at the same time, it has been announced that rising ‘surrogacy tourism’ in India is boosting an already four-billion dollar industry in that country. A sign of the times!

Surrogate motherhood is the practice whereby a woman (the surrogate mother) becomes pregnant with the intention of handing over the child to someone else (the intended parent) after the birth. A distinction is made between traditional and gestational surrogacy depending on whether the surrogate mother´s eggs are used or not. In the first case, the surrogate is also the genetic mother of the child. In the second case, the intended parent may or may not be also the genetic parent of the child, depending on whether a third person’s gametes were used or not (with regard to the donation of gametes, the so-called heterologous in vitro fertilization, see our article in europeinfos issue no. 146). Finally, with new techniques such as pronuclear transfer, even the “genetic material” might, at least in theory, originate from more than one donor.

Lost count? Indeed, too many “parents” for just one child, let alone mentioning a possible husband or partner of the surrogate mother herself!

Ethical and legal concerns

These assisted reproductive technologies – as a matter of fact, actual reproductive technologic revolutions – pose, of course, enormous ethical and legal questions and difficulties. To complicate things even more, surrogacy may be “commercial” or “altruistic”, and the surrogate mother and the intended parents may be from different countries (“cross-border surrogacy”), with different applicable legislations, often with one of them prohibiting (or simply not recognizing) the surrogacy arrangement – and therefore the corresponding foreign birth certificate – with possible, dire dramas of ‘parentlessness’ and ‘statelessness’ being created, often with the foreknowledge of the intended parents!

All this is pursued in the name of granting the ‘enjoyment’ of an alleged “right to a child” by anyone, at the expense of the disruption of marriage, motherhood and parenthood, and indeed family relationships in general. The human dignity of all parties, above all the surrogate mother and the child to born, is violated inasmuch as they are treated as mere objects or commodities; and, in the case of the child to born in particular, his or her very right to personal identity is also breached.

No wonder that surrogacy experiences a rather negative attitude from the point of view of the general public, despite the fact that some specific groups, such as the LGBTI (Lesbian, gay, bisexual, transgender and intersex) community and activists, are particularly interested in its legalization and facilitation. Nonetheless, only Greece, in the EU, has a comprehensive legal framework allowing ex ante (before birth) “altruistic” gestational surrogacy, yet with access limited to heterosexual couples or single women and, in either case, depending on “medical necessity”.

The way ahead

Notwithstanding, the aforementioned “Comparative study…” claims a lack of European consensus, indicating that the safeguarding of the best interests of the child is possibly the only common recognizable trend among Member States.

The “Comparative study…” also analyses the potential for regulation of surrogacy at the EU level, and possible legal grounds for it: Article 56 (services) and Article 168 (public health) of the Treaty on the Functioning of the European Union (TFEU) enshrining the freedom of movement of patients; Articles 20 and 21 TFEU guaranteeing the freedom of movement of citizens and European citizenship; and Article 19 TFEU, on non-discrimination, among others.

Meanwhile, two cases are pending at the European Court of Justice (Cases C-167/12 and C-363/12) and three more at the European Court of Human Rights (Sylvie Mennesson and other v. France, Francis Labassee and others v. France and Paradiso and Campanelli v. Italy), chiefly linked to Article 8 (right to respect for private and family life) or Article 14(prohibition of discrimination) of the European Convention on Human Rights.

In any case, given not least the complexity of the issue and the recognized limited competence of the EU regarding family law, the “Comparative study…”  suggests that a global approach would be the most desirable in governing this matter, and it even makes a proposal modelled on the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), for regulating cross-border surrogacy.

Definitely an issue of the highest ethical and legal importance to be followed closely in the near future!

A Programme for the future with one foot in the past - There were strong reasons for the EU not to miss the opportunity to take a step forward with regard to funding stem cell research - by José Ramos-Ascensão

In europeinfos

 

Seven years ago, in a Press release of 22.12.2006 relating to the final adoption of the 7th Research Framework Programme (FP7), the General Secretary of COMECE stated that “given that the financial means available for research are limited, EU funding must – in order to spend the available means in the most appropriate manner – concentrate on joint priorities.” This statement was produced in view of the possibility, foreseen under the FP7, of funding research in human embryonic stem cells (hESC), a research that entails the destruction of human embryos. If this was plainly valid in 2006, it is simply incomprehensible that the new programme, Horizon 2020, that has just been adopted by the European Parliament (EP), sticks with that wrong, ethically reproachable approach to research.

A key Programme with a major ethical problem

Horizon 2020 is an EU programme to run from 2014 to 2020 and was proposed in a legislative package of proposals presented by the European Commission on 20 November 2011. As a major instrument for promoting growth through research and innovation in the European Union Horizon 2020 is to be welcomed.

After almost two years and 1824 amendments tabled in the ITRE (Industry, Research and Energy) Committee of the European Parliament, the procedure has finally came to an end. Unfortunately, as regards the ethical framework of the Programme, some shortcomings have to be mentioned; for example, no reference is made to key principles applicable in the field: protection of human dignity and the principle of primacy of the human being – putting the interests and welfare of the human being before that of society or science.

Nevertheless, the major ethical problem of Horizon 2020 is still the possibility of funding research on hESC. On 21 November last, by voting against six amendments which reproduced the Opinion adopted on 18 November 2012 by the JURI (Legal Affairs) Committee, the EP Plenary upheld the common text allowing for such funding as already agreed with the Council in the context of the trilogue negotiations. It is worth saying that JURI is the EP Committee actually competent to analyse the compliance of European Union acts with primary law and for the interpretation of European law and the analysis of ethical questions related to new technologies.

A position grounded on solid reasons

The Secretariat of COMECE has voiced its position against funding such research on many occasions ever since the proposals were published (cf. Press release of 13.09.2012 and Press release of 7.12.2011). In October 2012 the Secretariat welcomed the granting of the Nobel Prize for Medicine for research on alternatives to embryonic stem cells research (cf. Press release of 8.10.2012).  Horizon 2020 as now adopted does not even prioritize funding research in alternative, much more promising research (can we still say that hESC are promising?) on non-ethically problematic sources of stem cells (see Europeinfos no. 140, of July-August 2011), and this is a matter for regret. On the other hand, the text of Horizon 2020 as adopted has not duly taken into consideration the ruling in the case of Greenpeace v. Brüstle, whereby the European Court of Justice reaffirmed the legal protection of the human embryo, defined as “any human ovum after fertilisation », and the non-patentability of inventions that make use hESC (see Europeinfos no. 139, of June 2011, and Europeinfos no. 144, of December 2011).

Inconsistency and perplexity

The EP Plenary also adopted an amendment referring to a statement of the European Commission on the ethical framework of Horizon 2020. This statement is very much the same as the one adopted by the Commission in 2006 with regard to FP7, so the status quo as concerns funding research on hESC is basically maintained. By paragraph 12 of the statement now adopted, the Commission commits itself to “continue with the current practice» which means that it will not  consider «projects which include research activities which destroy human embryos, including for the procurement of stem cells», making sure however that «the exclusion of funding of this step of research will not prevent Community funding of subsequent steps involving human embryonic stem cells». This is rather inconsistent from an ethical perspective, especially if we bear in mind that such funding of subsequent steps stimulates the procurement of hESC and, thus, escalates human embryo-destructive research. The Secretariat of COMECE has always upheld the exclusion of any research involving the use of hESC including in steps subsequent to their derivation.

Meanwhile, as the European citizens’ initiative One of Us (see Europeinfos no. 150, of June 2012) calls for the EU to stop funding such kinds of research, the reply is much awaited to a Question for written answer asking what measures will the Commission take to ensure that the adoption of Horizon 2020 will not pre-empt such an initiative, the biggest so far with about 1.9 million signatures.

By way of a conclusion to what has been said above, one can say that for ethical reasons, but also in the light of new scientific and legal developments and their impact on the economic rationale of research, it is surely to regret the missed opportunity to take this step forward in the field of EU research policy with regard to stem cells.

Born to be alive. Or maybe not A new ruling could pave the way to a European right to assisted suicide for all - by José Ramos-Ascensão

In europeinfos 

Should the State assist someone willing to commit suicide because he is getting older? Does such a wish to commit suicide generate a positive obligation for the State to facilitate it or to provide the means of suicide of one’s choice?

However odd that it may sound, these were the questions underlying a recent case at the European Court of Human Rights (ECHR), which monitors respect for

human rights in the 47 Council of Europe member States – including all members of the European Union – that have ratified the European Convention on Human Rights

A life that has just become “monotonous” and a too dangerous jurisprudence

In Gross v. Switzerland, an elderly woman, uncomfortable with her diminishing physical and mental faculties owing to her ageing, wanted to put an end to her life by means of taking a lethal dose of sodium pentobarbital; the only way, in her opinion, to attain a dignified suicide, reaching effectively and painlessly the desired death. However, four medical doctors one after another had refused to issue the necessary prescription for such a drug; the alleged reasons for that refusal included the fact that the Code of Conduct of the Swiss Academy of Medical Sciences –  despite the fact of considering that “the task of the doctor is to alleviate symptoms and to support the patient” and that “assisted suicide is not part of a doctor’s task, because this contradicts the aims of medicine” – recognizes a dilemma for the doctor, requiring a personal decision of conscience which may be to assist the suicide, provided, among other conditions, that the patient is terminally ill.

It is not the first time the ECHR has tackled such end-of-life issues: in previous judgments – Pretty v. United Kingdom (29^th April 2002), Haas v. Switzerland (20^th January 2011) and Koch v. Germany (19^th July 2012) – the Court has gradually built up, from the right to privacy enshrined in Article 8 of the Convention, an individual’s “right to decide by what means and at what point his or her life should end” and “a positive obligation on the State to take the necessary measures to permit a dignified suicide”. A key condition of the aforementioned right is the capacity “of freely reaching a decision on this question and acting in consequence”.

This time, however, there is a key distinction: Ms. Gross was not even ill, let alone seriously or terminally ill.

Legal uncertainty or a Court simply too sympathetic to the wish to commit suicide?

The Swiss law lays down that doctors can prescribe drugs “within the limits justified by their practice”, “in conformity with the requirements of their profession” and while respecting  “the recognized rules of  (…) medical sciences” The requirement of medical prescription in the case under consideration served interests such as the prevention of crime and the risk of abuse, ensuring that one “lacking discernment does not obtain a lethal dose of sodium pentobarbital”, discernment which is indispensible for the fulfillment of the condition which the ECHR itself attaches to the right it derives from Article 8.

Notwithstanding, the Court considered the Swiss law insufficient, and required the Swiss authorities to “issue comprehensive and clear guidelines on whether and under which circumstances an individual in the applicant’s situation – that is, someone not suffering from a terminal illness – should be granted the ability to acquire a lethal dose of medication allowing them to end their life”. Such guidelines, according to the Court, should not be issued by a non-governmental organization; instead, they should have the formal quality of law, as the Court departed from its previous understanding that the wish to die or to an assisted suicide falls within the scope of Article 8 and, therefore, the regime applicable to any interference to a fundamental right must prevail.

The Court even pointed out the way ahead referring to the need for “State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life”.

Therefore, the ECHR is clearly paving the way to a right to assisted suicide for all which will impact on the legislation of all member States of the Council of Europe. If the case is referred to the Grand Chamber, however, there is still a hope that this path might still be halted, as the present decision was taken by a minimum margin (4 votes for, 3 against) and as only four members States of the Council of Europe allow medical doctors to prescribe drugs which enable their patients to end their own lives.

So, coming back to the question at the outset, the answer is no, not entirely. For now, Gross v. Switzerland has ruled that the State is bound at least by the obligation to provide a clear, legal framework. However, a right to assisted suicide for all, regardless of their health situation, may well be on its way to becoming a new standard in European human rights law a little sooner than you might have foreseen.

Welcoming the more vulnerable: do parents have a right to selection of a healthy child? - by José Ramos-Ascensão

In COMECE

A new ruling on access to PGD techniques raises important ethical and legal issues, and opens an unavoidable debate.

Pre-implantation genetic diagnosis (PGD) refers to procedures, adjunct to assisted reproductive technologies (ART), by which an embryo is genetically analysed in order to detect some desired or undesired genetic characteristic. One typical case is when one or two cells (blastomeres) of early embryos (of 6 to 12 cells, still totipotent) are screened to detect chromosome anomalies linked with certain undesired diseases. Normally, only less than 20% of the biopsied embryos is eventually available for transfer into the uterus. The embryos which are not transferred are normally destroyed. Yet, even with regard to the embryo(s) actually transferred to the womb, the biopsy entails significant risks for his/her life and physical integrity.

In Italy, access to ART is only allowed for sterile couples or those where the male has a sexually transmitted disease (HIV, for example). Hence, Italy, together with Austria and Switzerland, are the only signatories to the European Convention on Human Rights which prohibit PGD (although twelve simply do not regulate it). However, in a ruling of last 28 August, the European Court at Strasbourg held that this prohibition violates the European Convention on Human Rights.

It is not the first time the European Court of Human Rights (ECHR) has dealt with ART (see also articles in issues  134 and 146 of europeinfos). In the present ruling (Costa & Pavan v. Italy), the applicants are an Italian couple who, being healthy carriers of cystic fibrosis and having already aborted a foetus with such a serious genetic disease, now wanted to resort to PGD for selection and transferring to the uterus of a healthy embryo. The European Convention on Human Rights establishes, in its Article 8 (2), that “there shall be no interference by a public authority with the exercise of this right (right to respect for private and family life) except such as is […] for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The Italian government, without disputing the insertion of this case into the ambit of Article 8, maintained that the prohibition is an interference justified to protect the health of the mother and of the child – an expression which the Court nevertheless refused to apply to the “embryo” – to avoid eugenic deviations and to protect the freedom of conscience of the healthcare personnel.

However, what it is at stake when it comes to PGD is much more than this: PGD violates, among others, the principle of human dignity, the inviolability of the right to life and the right to physical integrity of each human being. That is why it is a grave moral wrong.  The Congregation for the Doctrine of the Faith, in its Instruction Donum Vitae, 1987, affirms that “a diagnosis which shows the existence of a malformation or a hereditary illness must not be the equivalent of a death-sentence” (p. I, no. 2). Although this is stated in reference to prenatal diagnosis (PND), it is also true with regard to PGD.

Yet PGD and PND are rather different technical procedures, with important ethical and legal consequences stemming from such differences. First of all, it is noteworthy that, in the case of PND the ‘unhealthy’ being already exists; whereas in the case of PGD, a deliberate fertilization of eggs is pursued despite the high risk of creation of unhealthy embryos being already known. In PGD, moreover, there is a creation of extra embryos; some of them – even healthy ones – are subsequently eliminated. Furthermore, in PGD, the analysis of the blastomere entails also its destruction: as the blastomere is itself an embryo (in the sense upheld in the famous European Court Justice ruling in the Brüstle case), the final ‘waste’ of embryos is actually even higher. PGD also entails, as referred, significant risks for the life and physical integrity of the biopsied embryo transferred to the womb; some of these risks are inherent in IVF techniques in general. PGD costs are much higher and must be ethically assessed in the light of the principle of justice in the allocation of resources for health. Moreover, a much larger number of diseases can be tracked by PND and the reliability of these procedures is in any case much higher: that is why there is normally an indication for testing again the biopsied embryo after transfer, during pregnancy. Finally, PGD has no possible real therapeutic aim, whereas PND, at least in the abstract, might have (the Court itself, in the judgment of R.R. v. Poland, recognized that women accede to prenatal medical tests for varied reasons).

In the present case, the ECHR, in refusing to accept the Italian Government’s arguments, has focused the analysis on the consistency of the Italian law in question – which rules out PGD – with the law that authorizes the abortion of a foetus showing symptoms of cystic fibrosis. The Court wrongly endorses the idea that the “only one choice” left owing to the lack of access to PGD, in the case of an unhealthy embryo, is the resort to abortion. And assumedly because of this, the Court compares PGD not with PND but with abortion. Despite the fact that most of the above considerations are also valid from this distinct perspective (“only” one human being is eliminated by an abortion, as compared to the huge “waste” of embryos with PGD procedures, etc), none of them have been taken into consideration in the present ruling.

Firstly, the ECHR assumed, without any questioning, that the Italian law on abortion is proportionate, which should not be surprising as it already stated, in the case Vo v. France, that “it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention” (cf. also Evans v. UK).

Then, as a foetus with a chromosomic disorder associated with cystic fibrosis can be legally aborted in Italy, the Court concludes there is inconsistency (in the Italian legal system) and, hence, for the disproportionality of the interference with the couples’ right. This is sufficient enough for the ECHR which simply gives up furnishing any objective standard for assessing PGD per se. Following the Court’s reasoning, if the Italian law on abortion were to forbid so-called “therapeutic” abortion the prohibition would become proportionate – the Court, and the parties, do not object that the prohibition aims at the protection of morals and of the rights and freedoms of others – and the alleged inconsistency of the Italian legal system would vanish.

After all, without explicitly recognizing it, the Court resorts, once again, to the issue of equality, but again with rather dubious success. Even from the perspective adopted by the Court, a close analysis of the reality of PGD and of what substantially distinguishes it from PND, or from PND followed by abortion, would hardly lead to the conclusion of inconsistency of the Italian legal system and of a disproportionate interference with the privacy and family life of the applicants.

Finally, the present ruling is also unsatisfactory insofar as the Court not only reaffirms a kind of a “right to have a child” in the sense of a “right to respect for the decision to become a parent in the genetic sense » (Evans v. UK; see also Dickson v. UK, for example) or the “right of a couple to conceive a child and to make use of medically assisted procreation for that purpose” ( S.H. and others v. Austria); but goes even further: it now considers that the desire to have a child not affected by the disease in question is within the scope of Article 8; that is, there is a right to have a healthy child which can be weakened only under the conditions of Article 8 (2) of the Convention. This is not far from recognition of a right to eugenics, as has been already suggested.

As the Instruction Donum vitae puts it, “marriage does not confer upon the spouses the right to have a child, but only the right to perform those natural acts which are per se ordered to procreation. A true and proper right to a child would be contrary to the child's dignity and nature. The child is not an object to which one has a right”; on the contrary, the child himself has the right "to be the fruit of the specific act of the conjugal love of his parents; and he also has the right to be respected as a person from the moment of his conception” (p. II, no. 8).

A request from the Italian Government is awaited for the case to be referred to the Grand Chamber of the Court. Expectations are high now for a sounder, better grounded ruling by the ECHR.

A positive ruling underpinned by fragile foundations - by José Ramos-Ascensão

In europeinfos

The ban on heterologuos assisted reproductive technologies in conformity with the European Convention of Human Rights.

In November 2010, judging the case S. H. v. Austria, the European Court of Strasbourg decided that banning certain assisted reproductive technologies (ART) does not violate the European Convention on Human Rights (ECHR).

ART, originally meant to help infertile couples to have the child they wanted, have been successively expanded to encompass situations of increasing manipulation, selection and destruction of embryos, access not only of infertile couples but of single persons or same sex couples, use of gametes other than the couple’s (heterologous ART), recourse to a third-person’s womb, all situations that raise increasing social and ethical concerns.

With specific regard to heterologous ART, it has been limited by some members of the Council of Europe, for example, Austria, Germany, Italy and Lithuania. Austrian legislation in particular, prohibits both ova and sperm donation for IVF, while in the case of insemination (where sperm is introduced into a woman's reproductive organs), sperm donation is permitted.

What was at stake in the present case was the question of knowing whether such provisions in Austrian legislation constitute an offense contrary to the ECHR. In a first judgment of 2010 by a Chamber of the First Section of the Court, it was ruled that such prohibition violated Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life).

On 4 October 2010, the case was referred to the Grand Chamber which, on 3 November 2011, reversed the previous judgement at Chamber level, concluding both that there is no obligation on the State to allow certain forms of ART, and also that prohibiting some of them – or indeed all of them – is still within its margin of appreciation.

In the Court’s view, such margin is quite wide, as there is no consensus or clear common ground among Member States and the respective legislations concerning the interests at stake and the proper means to protect them, which is common when what is in question are sensitive ethical issues.

The ruling, despite its utmost importance and very positive features, does indeed present some undeniable flaws, some of them pointed out by Judge Vincent A. de Gaetano, in a far-sighted Separate Opinion.

The Court accepted, in apparent contradiction, that Article 8 is applicable to the case, which means that, in its understanding, such legal disposition comprises the “right of a couple to conceive a child and to make use of medically assisted procreation for that purpose”. Nevertheless, this understanding is aligned with a previous one held in the case Dickson v. UK, where the Court found that the “right to respect for (the spouse’s) decision to become genetic parents” is incorporated in Article 8.

Such individualist perspective, together with lack of proper acknowledgement and of a weightier definition of the parameters of Article 8, and a relativistic assessment of the interests, values and goods at stake (among them human dignity and dignity of procreation, or the best interests of the children to born), seems to be a fragile foundation for a ruling, to say the least.

Moreover, while affirming that it should scrutinize only whether the prohibitions in question were justified at the time the Austrian National Court considered the case, the Strasbourg Court has not relinquished its right to have regard for subsequent developments. And, although recognizing it cannot substitute for the State in determining the most appropriate policy with regard to ART – not because of considerations of competence, but because the State is “in a better position” to do that – the Court nevertheless made it clear that Austria’s policy is misaligned with an “emerging European consensus” with regard to allowing gamete donation, suggesting that it should be reviewed.

Therefore, it is likely that the question will be posed again, maybe in a judicial challenge to another, similar, piece of legislation from another member of the Council of Europe; and it is possible that a different, less positive ruling will then be issued.

Demography and the Future of Europe*

by José Ramos-Ascensão**

As the school year starts in Portugal this month, 701 primary schools will have their doors closed. The initial forecast of the Government suggested that around 500 schools, each with less than 21 pupils, would be closed. Maternity hospitals are also being closed all over the country.

These are only some of the impacts of the so-called demographic transition, or change, or more dramatically, the demographic challenge, implosion, or indeed demographic winter, that is devastating, not only Portugal, but all of Europe.

In the course of the next few minutes I will try to review the actual situation, its causes and its consequences, as well as to explore some of the solutions that have been proposed. Because the original title of this conference questioned the existence of an “anti-birth” mentality in Europe, I will pay special attention to the low fertility aspects of the demographic issue. Whenever appropriate, I will duly make reference to Caritas in Veritate which sheds some light on this issue. Actually, it is Pope Benedict VI who says herein that “coherence does not mean a closed system: on the contrary, it means dynamic faithfulness to a light received. The Church's social doctrine illuminates with an unchanging light the new problems that are constantly emerging” (no. 12).

As a result of increased longevity and lower fertility, Europe is ageing. The age pyramid is turning upside down. The absolute number of children is projected to decline gradually from 2020 onwards. Half of the population today is 40 years-old or more[1]. In 2060, half of the population will be aged 48 years or over. The number of elderly persons aged 65 or more already surpassed the number of children (those below 15) in 2008; but, in 2060, there will be more than twice as many elderly than children. In 2008, there were about three and a half times as many children as very old people (that is, those over 80). In 2060, children would still outnumber the very old, but only by a small margin.

Although a modest recovery in the total fertility rate is foreseen on a 50-year projection, that would not be sufficient, in all EU countries, to achieve the natural replacement rate of 2.1 births per woman.

The population of working-age had already started to decline in 2010; but by 2060 it will have fallen by 15 per cent in the EU as a whole. And although there is a projected increase in the labour participation rate - due mostly to an increase in the participation of older workers aged between 55 and 64 - a decline in the labour supply and in the labour input (that is, hours of work) will lead to a doubling of the old-age dependency ratio.

With the current legislation enacted, the population would peak by 2035, due mostly to immigration, but then the impact of immigration will disappear and a steady decline will take place, although with important differences among countries.

The underlying causes of this situation, particularly of low fertility, are multiple and complex. Family instability, the falling marriage rate and increasing divorce help to explain it. One out of every two marriages ends in divorce (in some countries, one of which is Belgium, it is 2 out of 3). This marital breakdown rate has doubled in about 25 years (that is, from 1980 to 2006).

Young adults are entering later into the labour market, because of studying longer, for example, and average age of motherhood jumped from 27.1 years in 1980 to 29.7 in 2006 (in other words, by more than two and a half years in the period!). This is due also to such factors as job instability at a time characterized by unusual economic and social uncertainties, pessimism regarding the future, the high cost of quality child education, and even the lack and cost of appropriate housing, with young couples being forced out to the suburbs, with a negative impact on their mobility, and far distant from an available network of informal care services.

But these study, working and family life contingencies and choices are also linked with life-styles and mindsets that are not conducive to assuming family responsibilities. A child, after all, is a lifelong bond.

The dominant culture is individualist, hedonist, consumerist. It is not now a predominantly Malthusian anti-birth culture, but rather a culture of women’s rights, such as so-called sexual and reproductive rights, that include the so-called right to abortion and to contraception. Human life is undervalued in this “culture of death” and a “safe-sex ideology” – safe from diseases, but also ‘safe’ from pregnancies – is inculcated in our children through sex education in the schoolroom. A widespread contraceptive mentality and behavior disconnects human sexuality from its procreative dimension, reflecting a reluctance to mutual self-giving by the spouses.

The consequences of the present situation are evident. Caritas in Veritate calls attention to the fact that “formerly prosperous nations are presently passing through a phase of uncertainty and in some cases decline, precisely because of their falling birth rates; this has become a crucial problem for highly affluent societies. The decline in births, falling at times beneath the so-called ‘replacement level’, also puts a strain on social welfare systems, increases their cost, eats into savings and hence the financial resources needed for investment, reduces the availability of qualified labourers, and narrows the ‘brain pool’ upon which nations can draw for their needs. Furthermore, smaller and at times miniscule families run the risk of impoverishing social relations, and failing to ensure effective forms of solidarity.” (no. 44).

European structural weakness is revealed by this simple fact: a century ago 15% of the world’s population lived in the area which is now correspondent to the EU-25; today this share is about half of that, and in the year 2050, it will be just a third.

Even without taking into account the potential negative impact of the current economic crisis, the annual average potential GDP growth rate in the EU is projected to fall to a meager 1.3% in the period 2041-2060. This is most disturbing when we consider that “man is constitutionally oriented towards ‘being more’ ”, as it is stated in the Encyclical (no. 14). In other words, development pertains to human nature.

Furthermore, long-term fiscal sustainability is being put at risk. On the basis of current policies, age-related public expenditure – that is, expenditures on pensions, healthcare, long-term care – is projected to increase on average by about four and three-quarter percentage points of GDP in the EU by 2060. Of course, we ought to consider as well the potential offsetting savings in public spending on education and unemployment benefits, but these are likely to be very limited (-0.4% of GDP). Nevertheless, these numbers should be broken down and examined in finer detail because there are considerable differences between Member States.

Anyhow, a further strain will be put on the productive, private sector where, at the end of the day, the resources will have to be found. The alternative is a clear restraint on the levels of social protection, with the fading of the European model of a social market economy: the vulnerability of the elderly would increase.

Living standards will therefore most probably be affected as each worker has to provide for the consumption needs of a growing number of elderly dependents. But the doubling of the old-age dependency ratio has also another even more drastic effect: namely, a likely exacerbation of social tension and conflict, putting more stress on social cohesion.

Finally, with an ageing population, serious issues of justice regarding the allocation of healthcare resources may also rise, with particular relevance when it comes to the case for legalizing euthanasia, for example.

When it comes to solutions, one thing is clear: coping with the challenge posed by an ageing population will require determined policy action.

Since 1997, the European institutions and specially the European Commission have issued a number of documents on the subject. In a 2006 Communication (called “The demographic future of Europe – from challenge to opportunity”), which followed a Green Paper of 2005 called “Confronting demographic change: a new solidarity between generations”, the Commission proposed five key areas for policy responses: i) promoting demographic renewal; ii) promoting employment (more jobs and longer working lives); iii) a more productive and dynamic Europe; iv) receiving and integrating migrants; and v) sustainable public finances to guarantee adequate social protection and equity between generations. Forums, platforms, surveys, reports, have been edited and regularly re-edited to appraise the new developments in research and the evolution of the demographic and family situation across Europe, assess its risks, and to exchange best practices.

At the EU level, the causes are identified, the consequences are foreseen, but when proposing solutions, sometimes attention is diverted to attacking the consequences or less important causes of the problem, instead of tackling low fertility itself. Reducing debt, raising employment rates and productivity, reforming pension, healthcare and long-term care systems, receiving and integrating migrants, these are certainly important policy goals, but they are linked with realities derived, at least partially, from the demographic problem itself.

In 2007, the European Economic and Social Committee contributed to the debate by issuing an Opinion on “The family and demographic change” and calling for the Member States to sign a “European Pact for the Family”.

The EU rightly starts from a recognition that the decision to have children is a private matter, and that the scope of policy is to enable couples to make their own choices with regard to the number of children they want to have. This approach is demanded by respect for freedom and for subsidiarity. Surveys suggest that Europeans generally would like to have more children than they actually have. In almost all EU countries, the number of desired children exceeds the replacement level. Responsible procreation is part of the Church’s teaching and is considered in Caritas in Veritate to be “a positive contribution to make to integral human development” (no. 44). What is up to the public authorities is to reinforce the incentives for making these choices, and to foster the best conditions for couples to exercise such responsible parenting.

Some of the policies which are promoted are undoubtedly pointing in the right direction: reconciliation of work and family life is an example. However, fostering the provision of formal childcare services (and care services for the elderly and other dependent people), outside one’s home, should not impede a recognition of the social, economic and educational value of informal family work. Financial support for a parent to take care of their children at home (which goes beyond extended maternity and paternity leaves), or for childminding by a grandparent, who would therefore keep active, would be more advisable, from the perspectives of both subsidiarity and intergenerational solidarity. As has already been called for in a Resolution of 2008 of the European Parliament, Member States should examine the possibility of recognizing length of service, social security and pension rights for those who carry out such family work.

One must keep in mind that in demographic policy, more than in other policies in general, it is the structural, long term perspective that makes much sense. Migration is not a long term solution (and it also raises problems of integration and the question of social cohesion in a multicultural society); neither is easy access to in vitro fertilization, whose diverse ethical difficulties are also well expressed in Caritas in Veritate.

Many other policy measures could be mentioned here: regarding, for example, fields as diverse as urbanism, mobility, VAT, education. It is extremely important to reduce the costs of education supported by the parents, not necessarily by public provision– as it is most important to ensure subsidiarity and pluralism through freedom in education. Nevertheless, it is true that there are reasons supporting public funding of education, at least at the primary level.

COMECE has already contributed some suggestions for policy measures, namely the ones included in our document of 2007 called “Proposal for a Strategy of the European Union for the Support of Marriage and Family”.

In general, however, policies and legislation should attend to five requisites.

First, they should promote adequate incentives or at least not produce distortions or convey wrong signals to society. For instance, cohabitation, divorce, abortion, should not be promoted by permissive, facilitating legislation that sanctions the very mentality that fragments values such as family and human life.

Notwithstanding the clear correlation between financial benefits per child and the number of children a couple has – and without questioning, for instance, that social assistance, including financial support to pregnant women, is certainly an advisable measure to avert abortion –, it is worth saying that before considering incentives the public authorities should work towards guaranteeing at least policy neutrality. Tax law, for example, should not discriminate against couples, married people or large families vis a vis singles, couples in cohabitation or divorced, and childless or one-child families. Which leads us to the second requisite.

Policies and legislation should respect the principle of subsidiarity. Besides what has been already said on this principle, it is important to bear in mind what is stated in the Encyclical: “The principle of subsidiarity must remain closely linked to the principle of solidarity and vice versa, since the former without the latter gives way to social privatism, while the latter without the former gives way to paternalist social assistance that is demeaning to those in need” (no. 57). Only when the couples, the family, are unable to perform their natural functions, should the public authorities intervene. In the words of Pope Benedict VI, the principle of subsidiarity is “an expression of inalienable human freedom” (no. 57).

Thirdly, policies and legislation should be transversal; the causes of the problem are multiple, so family and demographic policies must tackle a broad set of public measures – the larger picture should always be kept in mind.

Fourthly, participation: pro-family associations and federations, in particular, should be listened to and involved in policy definition and in the preparation of legislation.

Lastly, and in line with what has already been said, policies and legislation should be long-term oriented and stable, resistant to economic cycles.

One final word specifically on family policy.

Demographic policies should not be isolated from family policies and this must also be taken into account by the EU, although such policies are not within its sphere of competence. Society is built up from families. The family, based on the marriage of husband and wife, is best fitted for the success of marital life, parenthood and development of the children. It is best in performing the natural functions of the family: supplying human capital, the ultimate source of prosperity in a society, fostering social solidarity and emotional stability, transmitting values such as respect. It is imperative that the political actors recognize its social effectiveness: other familial structures are intrinsically more unstable and represent higher social risks – risk of poverty, exclusion, school drop-out, poorer health, lower skills. Family structure is not indifferent to the best interests of the child.

Pope Benedict VI, in Caritas in Veritate, states clearly that “it is thus becoming a social and even economic necessity once more to hold up to future generations the beauty of marriage and the family, and the fact that these institutions correspond to the deepest needs and dignity of the person. In view of this, States are called to enact policies promoting the centrality and the integrity of the family founded on marriage between a man and a woman, the primary vital cell of society” (no. 44).

Family mainstreaming, meaning in the first place the process of identifying the implications for families of any planned action, including legislation, policies or programmes, should be promoted both at EU and Member State levels.

In conclusion, one can say: demogaphy is not destiny.

As was stated in COMECE’s document of 2007 which I have already mentioned, we must create once again a “climate of joy and confidence in life, a climate in which children are not seen as a burden, but rather as a gift for all”.

Or, as Caritas in Veritatis puts it, “on this earth there is room for everyone: here the entire human family must find the resources to live with dignity, through the help of nature itself — God's gift to his children — and through hard work and creativity.” (no. 50).

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* Speech at the “Conference on the Encyclical ‘Caritas in Veritate’ from the Perspective of Politics, Economics and Theology” promoted by the EPP Group in the European Parliament on 14 September 2010.

** Legal adviser, COMECE (Commission of the Bishops’ Conferences of the European Union).

[1] The text of this speech includes direct quotations from official documents. I also take the opportunity to gratefully acknowledge that European Commission’s The 2009 Ageing Report: economic and budgetary projections for the EU-27 Member States (2008-2060), of 2009, was the source for much of the quoted data in the speech.