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Italy and medically assisted reproduction

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On Tuesday the 28th August, the European court of Human Rights declared the ruling that many couples wanting to have children were awaiting. A decision which sanctions, without a shadow of doubt, the inadequacy and inconsistency of Italian legislation regulating medically assisted reproduction.

The case

Two parents in their thirties resorted to the European Court of Human Rights when their first-born son was born with cystic fibrosis, and it was discovered that they were healthy carriers of the illness. As they wanted another child, the couple therefore resorted to pre-implantation genetic diagnosis, in order to find out whether it was possible, by means of medically assisted reproduction procedures, to prevent passing on the illness to the unborn child. It had nothing to do with choosing hair color, sex, or features of any kind. It was simply about avoiding knowingly bringing a child into the world who would spend a lifetime fighting this extremely serious illness. This should have been possible thanks to a procedure which identifies the presence of genetic illnesses or chromosomal abnormalities before implantation of the embryo in the uterus. However, this option is not available to fertile couples according to Italian legislation 40/2004, and only available to infertile couples or those carrying transmittable viral illnesses such as HIV, and hepatitis B and C (Art. 4, L. 40/2004 and Decree from the Department of Health no. 31639/2008).

The couple therefore resorted to the European Courts, with the aim of demonstrating the illegitimacy of a legislation which discriminates against those who wish to use science to avoid that their own children inherit genetic illnesses. According to legislation 194 of 1978, if the fetus is seriously ill, the mother may resort to therapeutic abortion: the issue can only be deferred, and resolved, for want of a better word, with greater risks to the health and welfare of the mother. The defense of the Italian Government, prohibition of L. 40 instead serves to protect the health of the baby and the mother, the dignity and freedom of conscious of those within the medical profession and the general interest which involves avoiding the risk of eugenic trends.

The Court did however understand the couple's reasoning, based upon Art. 8 of the European Convention on Human Rights (ECHR), according to which “Every person has the right to freedom of private and family life”: the claimants have the right to have their decision to become parents respected, resorting to assisted reproduction to not pass on, to their unborn child, the illness of which they are healthy carriers.

Alternatives, or so alleged

What alternatives, with regards medically assisted reproduction, do couples have without the ruling of the European Courts? On the one hand, resignation, you could give up on the idea of having the child, or begin the long adoption process. On the other hand, hold on to the desire to have your own child, save up money and courage, and pay a visit to one of our neighboring European countries (amongst which, Belgium and Spain, for example) where the pre-implantation diagnosis is permitted and widely used. Where not an option, conceive a child naturally, and should the child have an illness, consider the option of abortion.

The infamous Law 40

Up until its approval, Law 40/2004 was very controversial. The structure of the legislation appeared to quite clearly shut off all options offered by medically assisted reproduction, limiting its use solely to infertile couples, permitting a maximum of three embryos for every fertilization cycle (taking away all decision-making powers from doctors relative to the patient's situation), without the option of pre-implantation diagnosis, and without the option of turning to external donors (e.g. artificial insemination).
At present, subsequent to numerous court victories, the main one being ruling no.151/2009 of the Constitutional Court of Italy, there are no longer limits on the maximum number of embryos which can be implanted, and it is down to the doctor, according to individual cases, to decide. Surplus embryos may be cryopreserved (now overrules the previous and unjustified prohibition). It is still impossible to resort to gametes outside the bodies of the originating organisms by means of artificial insemination, although it is now possible to carry out pre-implantation diagnosis for both fertile and infertile couples.

An obstacle course, a concept which can be applied to legislation which attempted to regulate extremely delicate matters but which ended up just neglecting the most basic practical and sensible elements, in addition to breaching the fundamental principles relative to fair treatment and right to health, as recognized by our Constitutional Court of Italy, and now, by the European Courts.

The short-term context: what are the risks of resorting to the powers?

The European ruling saw conflicting and controversial reactions, primarily from the Catholic population and political supporters of the Law 40.

The Government may appeal to the Grand Chamber against the ruling, focusing primarily on the fact that the couple turned to the European Courts without first exhausting all the Italian legal solutions, as specified in Article 35 of the ECHR (the voice of the Cardinal Bagnasco could be heard on many occasions); he wanted to emphasize that "it did not go through the Italian magistrates" that it was "outclassed”). Such an assessment originates from the principle of subsidiarity upon which the ECHR is based, which establishes the national judgment as primary guarantor of its application. The interpretation of the European Courts has always been quite flexible and this may serve to justify the clear abnormality of this case, in addition to presenting the pretext confirming this decision. The Court confirmed, upon other occasions, that the rule overseeing exhausting the internal solutions must be applied without excessive formalism and whilst always bearing in mind the circumstances of the individual case. The State “solution” must additionally be accessible and effective. It was already confirmed in a previous European case where it was stated, seeing as the Italian constitutional legal system does not consider direct recourse from individuals to the Constitutional Court (which is always upon the initiative of a judge), appeal to local magistrates cannot automatically be considered an internal solution. In other words, assessment of the issue by the Constitutional Court is not served at the time where recourse is made to an inferior court and at the same time, it is not stated that it is an effective solution for individual citizens whose rights have been breached, this case being an example.

The Government has 3 months to formulate their arguments, thereafter the European ruling will be classified as definitive. At this time, the content will be binding in Italy. The Parliament, will be called to modify Legislation 40/2004, and subsequently. consult the Constitutional Court; the lastly mentioned may directly intervene with regards the legislation text.

Where the above is not possible, recourse is made to the inferior courts, who must consult Law 40 in compliance with that established by the European Courts, and contrarily to the literal dictate. This would represent an extreme and uncertain solution. It would be desirable for our Parliament to play a diligent part, taking note of European instructions and look to make pre-implantation diagnosis possible for fertile couples, removing this abnormality and inconsistency which was also discovered on a supranational level.

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