Abstract
BackgroundIn Italy in 2004, a very restrictive law was passed on medically assisted reproduction (MAR) (Law 40/2004) that placed Italy at the most conservative end of the European spectrum. The law was widely criticized and many couples seeking MAR brought their cases before the Italian Civil Courts with regard to pre-implantation genetic diagnosis (PGD), donor insemination and the issue of consent. Ten years on, having suffered the blows of the Italian Constitutional Court, little remains of law 40/2004.DiscussionIn 2009, the Constitutional Court declared the maximum limit of the number of embryos to be produced and transferred for each cycle (i.e. three), as stated in the original version of the law, to be constitutionally illegitimate. In 2014, the same Court declared as unconstitutional the ban on donor insemination, thus opening the way to heterologous assisted reproduction. Heterologous MAR is therefore perfectly legitimate in Italy. Finally, in 2015 a further ruling by the Constitutional Court granted the right to access MAR to couples who are fertile but carriers of genetic diseases. However, there is still much room for criticism. Many couples and groups are still, in fact, excluded from MAR. Same-sex couples, single women and those of advanced reproductive age are, at the present time, discriminated against in that Italian law denies these subjects access to MAR.SummaryThe history of Law 40/2004 has been a particularly troubled one. Numerous rulings have, over the years, dismantled much of a law constructed in violation of the rights and autonomy of women and couples. However, a number of troubling issues still exist from what is left of the law and the debate is still open at national and transnational level regarding some of the contradictions and gaps in the law highlighted in this article. Only by abolishing the final prohibitions and adopting more liberal views on these controversial yet crucial issues will Law 40/2004 become what it should have been from the start, i.e. a law which outlines the ‘rules of use’ of MAR and not, as it has been until now, a law of bans which sets limits to the freedom to reproduce.
Highlights
In Italy in 2004, a very restrictive law was passed on medically assisted reproduction (MAR) (Law 40/ 2004) that placed Italy at the most conservative end of the European spectrum
Only minimal legal intervention necessary in relation to the access and use of MAR [1]. It had become apparent over the years that some sort of regulation of MAR was necessary in Italy
Rulings from many Italian Civil Courts (Court of Cagliari, Court of Florence, 2007) [14] have recognized the right of infertile couples affected by genetic diseases to access pre-implantation genetic diagnosis (PGD)
Summary
Overview and facts The law was widely criticized [7,8,9,10,11,12] and Italian Courts heard more than 30 challenges to various aspects of the law itself [13]. Law 40/2004 has been profoundly changed over the years following the judgments of the Italian Constitutional Court that have guaranteed more people the right to access MAR, PGD and donor insemination. Since issues such as the ban of withdrawal of consent to the procedure until the time the oocyte is inseminated, and the further liberalization of the actual criteria to access MAR (single women, lesbian and gay couples) still remain unresolved, the decisions of the Constitutional Court are unlikely to end the debate on MAR
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