The Court has declared paragraph 2 of Art. 14 of law n. 40 of 2004 ("Rules on medically assisted reproduction") unconstitutional, limited to the words "for one single and simultaneous implantation, and in any case not more than three" and to the third paragraph of the same article in the part where it does not provide that the transfer of embryos, to be carried out as soon as possible, must be carried out without compromising the woman’s health.
Italian Constitutional Court - decision n. 151/2009: single and simultaneous implantation of no more than three embryos
8 maggio 2009
Numero
151
Anno
2009
The Court's intervention thus maintains the principle under which doctors should not create a higher number of embryos than strictly necessary, but it removes the requirement for a single and simultaneous implantation and the maximum number of embryos to be implanted. In this way, the Court rejects the legislature’s requirement for identical treatment in different cases where it would be unreasonable, and the requirement for the woman to undergo the further ovarian stimulations, which may injure her right to health.
In its reasoning the Court considers, in particular, that the legislative provision in question does not recognize doctors’ judgement: “the decision to declare the contested provisions unconstitutional thereby upholds the principle according to which the techniques of reproduction must not create a number of embryos greater than that which is strictly necessary in accordance with evaluations reserved in the specific case to the doctor, but strikes down the provision requiring one single and simultaneous implantation and imposing a maximum number of embryos that can be implanted, thereby rejecting both the mandate of identical treatment in different situations where it may be unreasonable, as well as the need for the woman to undergo, if necessary, another round of ovarian stimulation, which may possibly infringe upon her right to health”.
Therefore, the law violates the principle of equality found in art. 3 of the Constitution—both in terms of reasonableness and that of equality—and, for the risk that derives from the law to the health of women, the law was found in breach of art. 32, since it imposes the creation of the number of three embryos in the absence of any consideration of the subjective conditions of the woman who, from time to time, undergoes the procedure of medically assisted reproduction.
These conclusions therefore also entail the aforementioned declaration of unconstitutionality of the part of paragraph 3 in which it does not provide that the transfer of embryos, to be carried out as soon as possible, must be carried out without prejudice to the health of the woman.
It must also be considered that decision no. 151 of 2009 introduces an exception to the general prohibition on cryopreservation, precisely because, as a logical consequence of the judgement, it is necessary to resort to freezing techniques for embryos not transferred due to medical choice.
In the box on the right, find the official translation of part of the decision offered by the Constitutional Court.
Full text of the decision in Italian can be found here.
Derek Van Becelaere, Raffaele Guerini
Pubblicato il: Venerdì, 08 Maggio 2009 - Ultima modifica: Domenica, 06 Ottobre 2019
