The European Court of Human Rights (ECHR) recently decided to condemn Italy, requiring it to modify the law regarding limitations on pre-implantation diagnosis (genetic testing of embryos prior to implantation) for those fertile couples who are carriers of genetic diseases. European judges have ruled that a ban preventing an Italian couple from screening embryos for cystic fibrosis before starting in vitro fertilisation breached human rights laws.
Amleto Mattei, president of the Rotary Club of Rome, said “In Italy the ‘collective consciousness’ of citizens is often superior to that of legislators whose laws can encroach on fields outside their competence. This can result in a precarious equilibrium of rules with potentially harmful consequences.”
The Italian law (40/2004) is almost 10 years old, yet there has always been extremely heated debate between the Parliamentary faction that considers life (starting from the instant of conception) sacred; and thus considers wrong any kind of intervention; and the faction that takes a more secular orientation, focused on each individual’s right to self-determination. The latter faction takes into consideration the Italian Constitutional Court’s decision regarding the rights of the unborn: “The right to life and health of those who are already persons (such as the mother) and the protection of the embryo (who still has to become a person), cannot be considered equivalent.”
The result has been a law that is fragile and contradictory, as the law itself considered ‘the conceived’ a legal entity, on the same level as the parents. The generic term: “medically-assisted procreation” (MAP) refers to procedures that assist fertilization and the initial phases of the embryo’s development. Yet, Italian law 40 does not define “embryo”. A commonly accepted definition is “the organism that develops from the time of fertilization”.
The Italian law still categorically prohibits any type of testing or research on human embryos, even those destined to decay because not implanted or already in cryopreservation (frozen) prior to enactment of Law 40. The law also forbids destruction of embryos.
Law 40 allows the use of procreative techniques only “in order to facilitate the solution of reproductive problems arising from sterility or human infertility” thereby limiting access only to certain categories of individuals; namely adult couples of different gender, married or living together, of potentially childbearing age, both living.
The Italian couple in the European court case wanted to have a child by in vitro fertilisation (IVF), so that the embryo could be genetically screened prior to implantation, but Italian law prevents this for fertile couples. Had they been sterile or carriers of sexually transmissible diseases such as HIV or hepatitis B and C, this would have been permitted.
The European court noted the inconsistency in Italian law that denied the couple access to embryo screening but authorised medically-assisted termination of pregnancy if the fetus showed symptoms of the same disease.
The Court concluded that the interference with the applicants’ right to respect for their private and family life was disproportionate.
There are other concerns with Italian law 40. In vitro fertilisation (IVF) involving both sperm and egg from donors outside the couple is banned. Legal sanctions are inflicted not on the couple, but on medical personnel. Since this ban protects neither the unborn nor the parents, there have already been several claims to have it overturned on the basis of it being discriminatory, and new rules are expected soon.
Surrogate motherhood can result in even more serious penal sanctions. Italian law also prohibits human cloning; production, cryopreservation (freezing), suppression of and research on embryos; and creation, marketing and sale of gametes (sperm or egg reproductive cells that, if united, will form a fertilized egg).
A positive change
Already in 2009 the Italian Constitutional Court declared illegitimate several of the articles of the original law, in particular those imposing production of a maximum of 3 embryos, and their immediate implantation in the woman’s womb, regardless of any possible health hazard to the woman. This was a very significant change in a law that unconditionally safeguarded the embryo, to a law that takes into consideration the health and dignity of the woman, and the couple.
To comprehend the impact of this, we need to remember that women with infertility problems are subjected to “hormone bombing” in order to produce oocytes, cells that can become eggs. Frequently the first cycle of “hormone bombing” produces 10 -15 oocytes. But, when only 3 of those fertilized could be implanted in the womb; the others had to be discarded. In the case that a pregnancy did not result, the woman had to be subjected to additional cycles of “hormone bombing”, with all the extremely serious side effects this entails.
Now, embryos that are not implanted may be cryopreserved, or frozen, thus avoiding the need to subject the woman to further hormonal stimulation.
In February, the European Court of Human Rights (ECHR) declared inapplicable the Italian law, deemed discriminatory. Thus all couples: sterile, infertile, and also fertile carriers of genetic diseases, are to be given the right to utilize MAP and, in particular, pre-implantation diagnosis to determine the health of an embryo.
According to SQ Law, this sentencing, which was held unanimously, opens the door to making the Italian law more legally sound. The European Court ruling is final and it may no longer be appealed by the Italian Government.
The Milan court just recently asked the Constitutional Court to decide whether in vitro fertilisation (IVF) involving both sperm and egg from donors outside the couple is or is not compatible with constitutional rights. We are waiting for the Constitutional Court’s decision.
SQ Law’s Francesca Re concludes, “The hope is that soon the new Italian Parliament, in accordance with the constitutional principles of secularism and equality, will revamp a legislation that has been deemed discriminatory by several Italian and international courts in order to align it more with international legal principles and practices”.
About SQ Law: SQ Law is a global law group serving international private and corporate clients in virtually every area of cross-border law. Created in 2013 from the partnership between MPlegal in Italy and SQ-Law in Belgium, the group comprises a total of 5 partners and 25 multi-jurisdictional lawyers and boasts over 30 years of global experience. SQ Law are members of Legal Netlink Alliance (LNA) a group of carefully selected general practice independent law firms that share common high-level expectations of quality and integrity. The firm was awarded Corporate and Commercial Law Firm of the year – Italy by DealMakers Monthly Magazine (2013); and Lawyer Monthly, Finance Monthly and M&A International Magazines (2012). SQ Law EEIG is an international group of independent law firms incorporated under Belgian law.
Isabella Isola, +39 349 494 5903, Isabella@bannigan.com