Heterologous fertilization also in Italy: what now?

The Constitutional Court with the sentence of yesterday 9 April 2014, made illegitimate the provision provided for by article 4 paragraph 3 of law 40/2004 which prohibited heterologous fertilization in Italy.

This law had given the green light to the pilgrimage abroad of thousands of infertile couples to be able to conceive a child thanks to the donation of gametes. For example, Spanish clinics in recent years have really made a lot of money thanks to what we can call procreative”.

Consequently, in Italy it will be legal to resort to PMA with the use of ova and sperm from a donor outside the couple.

And not only.  Yesterday , articles 9, paragraphs 1 and 3, and 12, paragraph 1, which provided for penalties for doctors who practiced this technique, were also rejected  .

The Constitutional Court reached this decision after accepting the appeals   presented by the courts of Milan, Florence and Catania which about a year ago had raised the question of constitutional legitimacy regarding the prohibition of heterologous fertilization because it was in contrast with some principles of our Constitution including that of equality between couples, the right to start a family and the right to health.

We asked   Dr. Filippo Maria Ubaldi for an opinion , a gynecologist specialized in reproductive medicine, who stated:

 “Most of the egg donation cycles that are done in Spain concern Italian couples. The ban on the use of heterologous fertilization is against the European Convention of Human Rights as established in 2010 by the European Court of Strasbourg, as it infringes the right to family life and the prohibition of discrimination. In fact, if a country admits homologous in-vitro fertilization, discriminatory treatments cannot be envisaged due to the different fertilization techniques used. Furthermore, how useful is such a ban when couples go abroad, often without protection and without being considered by the PMA Registry which supervises the treatments carried out and the children born?”

The reactions:

The reactions have been positive above all in the scientific and medical environment as is normal.

The Catholic movements, on the other hand, have a different view. Famiglia Cristiana speaks of a “ regulatory vacuum and Wild West on a very delicate matter. Ignoring the child’s right to have a recognized mother and father “.

Even the Minister of Health Lorenzin yesterday underlined the complexity of the issue. He rightly stated that “for example,  the anonymity or otherwise of those who give their gametes to the couple and the right of those born from these procedures to know their origins and parental network as brothers and sisters will have to be evaluated”.

The Science & Life Association said even more harshly:

“In this way an inexorable regulatory vacuum opens up which is a prelude to a return to that procreative Far West which in the last ten years it had been possible to contain.  With the cancellation of the ban on heterologous fertilization, every practice of human reproduction is legitimized, with the sole pretext that everyone, in any case, has the right to have their wishes guaranteed. In this sense, legal culture returns to the domain of technoscience, legitimizing its excessive power. This ruling also opens up the gamete market scandal: no one guarantees that it won’t happen – as is already the case abroad – with the exploitation of those in economic difficulty”.

They are very strong positions that I partly share even if I fully understand the feeling of all those couples who want a child “at all costs” after years of attempts and disappointments.

The right to parenthood is an extremely complex issue that cannot be discussed on the basis of numbers and decrees alone. There are too many ethical implications that should not be underestimated. And this is because in my opinion  one should NEVER forget to put the child, his  needs and his rights first when certain decisions are made. Too often we only talk about the rights  of  adults without  thinking  about the consequences that may fall on the shoulders of those who will be born.