How the legislation on medically assisted procreation has evolved in Italy

Thirteen years since the enactment of Law n.40, 19th February 2004, several rulings from the European Court of Human Rights (ECHR), the Italian Constitutional Court, as well as from single local tribunals have substantially modified the regulations governing medically assisted procreation Such changes have impacted the following issues: The upper limit of embryos which may be lawfully produced; the option for cryopreservation of such embryos; heterologous fertilization; preimplantation genetic diagnosis; and the option for fertile couples diagnosed with genetically transmitted diseases to avail themselves of medically assisted procreation procedures. This paper elaborates on each ruling and on possible grounds for incompatibility between the Italian regulatory framework and the Constitution and the European Convention on Human Rights. (EConHR). The paper highlights the many criticisms which several scholars have voiced towards each of the above-mentioned motives. The indicated regulatory evolution has considerably reduced the amount of limitations and prohibitions, thus making the legislation much better suited to preserve women’s health and the right to parenthood. Both aspects are constitutionally safeguarded under Italy’s founding document. No ruling denies that embryos should be protected as well. A large number of the restrictions and prohibitions, under provisions of Law 40/2004, remain valid. The Italian Constitutional Court has stated that such prohibitions which prevent scientific experimentation on embryos as well as the suppression of those embryos are unhealthy as a result of a preimplantation diagnosis. The general scope of the principles, spelled out by the Constitutional Court, might lay the groundwork for further rulings aimed at broadening the possibility to harness medically assisted procreation procedures.