FRA LEGISLATORE, CORTE COSTITUZIONALE E GIUDICI COMUNI: PROBLEMATICHE INTORNO ALLA PROCREAZIONE MEDICALMENTE ASSISTITA

Abstract PhD THESIS IN CONSTITUTIONAL LAW “BETWEEN LEGISLATURE, CONSTITUTIONAL COURT AND TRIBUNALS: PROBLEMS AROUND ASSISTED PROCREATION” The matter of medically assisted procreation regulated by Act No 40 of 2004, which aims at identifying a solution to the reproductive problems deriving from a couple’s sterility or infertility, ensuring the rights of all parties involved including the unborn, has seen over the years the progressive action of a variety of institutional actors, such as the legislature first, the lower courts, the Constitutional Court and the European Court of Human Rights, who have contributed and still contribute to its definition. It should be noted how the choices that have been adopted into Law 40/2004 and the subsequent ministerial guidelines have brought Tribunals, who had been called upon to make practical application, to offer solutions to conflicts that had arisen about the most critical profiles. Precisely on these profiles lingered civil and administrative judges who, after some decisions showing complete adherence to the ratio of the law, have on the one hand come to an interpretation in conformity with the Constitution, on the other have also affected the legitimacy of the ministerial guidelines. In addition, the role of judges has been instrumental in the establishment of the judgements of constitutionality before the Judge of the Laws. The Constitutional Court, once the common judges have considered the relevance as well as the non-manifest groundlessness of the questions and have unsuccessfully made an attempt to attain a constitutionally compliant interpretation, has made a major contribution in defining the content of the legislation, redesigning many provisions. It was also necessary, considering the increasingly supranational dimension of Law, refer to the influence of the European Court of Human Rights’ case-law, with particular reference to the question concerning the type of heterologous assisted fertilization. The involvement of the stakeholders has been fundamental in a field – that even before the law was effective gave rise to heated discussion – which is likely to affect the rights of those concerned and to outline the possible configuration of “new rights”. Even the holding of referendums on the discipline – which were ultimately null, as the necessary quorum of participants was not reached – allows, in particular, to carry out some considerations about the nature of Law 40/2004 In order to outline the scope of the rights underlying the matter, in the light of regulatory and judicial actions, this work has not privileged an approach to the underlying issues which traces chronologically the changes in the matter. It has in fact tried to adopt a method that identifies above all the most critical profiles, and to check for each of them what was the solution offered by the Legislature first, and then by Tribunals, with particular attention to the different balance operated between the rights that are prominent. Through the reconstruction of these profiles, it was possible, therefore, dwell on the extent of the rights of all parties involved and consider the possibility of identifying “new” rights, taking into account the new challenges claimed by the law itself. Particular attention was directed towards the identification of the rights of couples seeking access to assisted reproductive techniques, of the would-be mother and father, and of the unborn, as configured by the Legislature and as interpreted by case-law. In this respect, related to the reconstruction of the rights which refer to different subjects, constant reference has been made to the matter of abortion, in order to delineate the difference of approach of the two statutes with regard to the protection of the underlying rights.