In its recent ruling, the Italian Constitutional Court has ruled on the requirements for access to medically assisted procreation and the right to self-determination in medical procedures suitable for establishing parentage.

The Constitutional Court did not uphold the judgement of legitimacy promoted by the Court of Florence in 2024, since it is up to the Legislator, in its discretionary power, to amend the relevant legislation and allow this category of people access to ART. No violation of Articles 2, 3, 13, 32 and 117(1) of the Constitution, the latter in relation to Articles 8 and 14 ECHR, as well as Articles 3, 7, 9 and 35 CFREU, has been found.

Even though, the Court declared illegitimate the rules on international adoption that did not allow foreign minors to be adopted by single Italian persons, by virtue of parental-oriented self-determination, it identified a limit to the right whenever a medical artificial reproduction procedure is involved. Article 5 of Law No. 40 of 19 February 2004 allows persons in a couple, both living, of different gender, cohabiting or married, who are in a condition of sterility or infertility or healthy but affected by genetically transmissible diseases, at a potentially fertile age to have access to ART procedures at public or private clinics authorised in the national territory. Despite the recent reform of the discipline by the DDL Varchi, the intervention only affected the extension of the criminalization of surrogacy also abroad of the offence under Article 12, paragraph 6 of Law 40/2004, in the part that punishes surrogacy carried out by Italian citizens abroad. Therefore, the structural interventions aimed at reforming the discipline, also hoped for by the Court itself on several occasions, have not been carried out.

Therefore, the structural interventions aimed at reforming the discipline, also called for by the Court itself on several occasions, have not been implemented.

For these reasons, the subjective requirements outlined in Article 5 of Law 40/2004 remain valid and effective. In accordance with the Court's reasoning, the limitations set out in the aforementioned provision are based on the precautionary principle. Thus, in the event of scientific uncertainty regarding the consequences of single motherhood accessing PMA, it is the legislature that must amend the rules in question.

It is of no relevance that the Constitutional Court has declared illegitimate the same law insofar as it does not allow single persons who have survived the death of their partner or husband to continue artificial fertilisation treatments, whenever the embryo was produced before the man's death. In fact, the law in force in Italy applies to persons suffering from a condition of pathological and not physiological or structural or social sterility or infertility such as single persons who do not have a partner with whom they can have access to PMA.

 

(Comment by Stefania Pia Perrino)