Selection Without a Selector: Polygenic Embryo Screening and the Eugenics Prohibition of Article 3(2) of the Charter of Fundamental Rights of the European Union

Abstract

Article 3(2) of the Charter of Fundamental Rights of the European Union prohibits eugenic practices, in particular those aiming at the selection of persons, a provision drafted with a single historical referent in view, state directed and population targeted eugenics of the kind twentieth century Europe experienced directly. Polygenic embryo screening, a technology now commercially available and already used to rank embryos by predicted disease risk and, increasingly, by non disease traits, presents that provision with a structure its drafters did not anticipate. No state selects. No single actor aims at a population outcome. Thousands of individually autonomous and individually lawful parental choices may nonetheless produce, in aggregate, an effect indistinguishable in kind from the harm the provision exists to prevent. This article names this structural difficulty the selector problem and asks whether Article 3(2) can be interpreted to reach it. Drawing on the provision's drafting history, the Court of Justice's interpretive practice in Brüstle v Greenpeace, the reproductive genetics and bioethics literature documenting polygenic screening's trajectory, and the theory of aggregate behaviour developed by Schelling, the article constructs an interpretive test for what it terms aggregate eugenic effect, tests that framework against the strongest available objection grounded in procreative liberty, and proposes a regulatory response to the jurisdictional difficulty a multinational screening industry presents. The article argues that existing scholarship has diagnosed this phenomenon in ethical and scientific terms without supplying it with the doctrinal architecture Article 3(2) itself requires, and undertakes that construction across a single sustained argument.

Keywords: Eugenics; Polygenic Embryo Screening; Charter of Fundamental Rights; Aggregate Effect; Procreative Liberty; Reproductive Genetics.