by Diletta Corti*
In Judgment No. 161 of 2023, the Italian Constitutional Court ruled on the constitutional legitimacy of Article 6, paragraph 3, third subparagraph, of Law No. 40 of February 9, 2004 (‘Norme in materia di procreazione medicalmente assistita’). The norm allows each member of the couple undergoing artificial insemination to withdraw consent up to the moment of fertilisation. In the broader constitutional context, however, this provision opens up problematic scenarios since, despite the wording of the article, consent is treated differently for men and women.
The Case
In September 2017, a married couple consented to the cryopreservation of the embryo formed through Medically Assisted Procreation (PMA) to enable biopsy before its implantation, which had been postponed due to the woman’s endometrial insufficiency. In the following months, the woman underwent specific pre-implantation pharmacological analyses and therapies, including an invasive procedure known as ‘endometrial scratching’. However, the embryo was not implanted in utero as the husband moved out of the family home in January 2018, and the couple finalised their separation in March 2019.
After seeking a judicial declaration to dissolve the civil effects of the marriage, the husband withdrew his consent to the implantation on 24 August 2020. The woman then turned to the Court, requesting the health centre be ordered to proceed with the embryo implantation, since Article 6, paragraph 3, Law No. 40/2004 does not allow the withdrawal of the man’s consent after fertilisation.
The constitutional legitimacy of the norm was questioned by the court of first instance (Tribunale di Roma), due to the absence of provisions on the revocability of consent after fertilisation but before implantation. According to the Court, this could pose a challenge if a significant amount of time had elapsed since fertilisation and the ‘couple project’ has dissolved, as the legal requirements for access to PMA may no longer be met. In particular, the judge argued that the irrevocability of a man’s consent violates the following constitutional rights:
- the right to self-determination concerning the decision not to become a parent and the right to respect for private and family life (Art. 2 and Art. 117, par. 1, of the Constitution, the latter in relation to Art. 8 of the European Convention on Human Rights (ECHR));
- the principle of personal freedom and inviolability (Art. 3 and Art. 13, par. 1 of the Constitution), since the contested provision, by allowing the woman to request the implantation despite the subsequent man’s refusal, would unreasonably force him to become a parent against his will;
- the principle of equality (Art. 3 of the Constitution), as only the man’s freedom would be sacrificed, whereas the woman, despite her initial consent to ART, can still refuse the embryo transfer into her uterus, which can’t be imposed on her;
- the right to health (Art. 32, par. 2 of the Constitution), since failure to take into account the man’s consent would ultimately subject the male member of the couple to a coercive medical procedure that would affect his physical and mental integrity.
Before analysing the raised constitutional issues, it may be useful to briefly examine the legal background in which the decision of the Italian Constitutional Court is embedded.
The Italian Legal Framework on PMA: The Progressive Erosion of The General Ban on Cryopreservation
In Italy, Law No. 40/2004 regulates medically assisted procreation to address reproductive issues arising from sterility and infertility, as well as for fertile couples carrying genetically transmissible diseases.
Pursuant to Article 5, paragraph 1, PMA is accessible to heterosexual adult couples, whether married or cohabiting, who are of potentially fertile age and both alive. Access to these techniques is governed by the principle of informed consent (Art. 4, par. 2, let. b). Before resorting to PMA and at each stage of its use, the physician must provide the couple with comprehensive information, including details about the methods, bioethical considerations, possible health and psychological side-effects, the chance of success, associated risks, and the legal implications for the woman, man, and unborn child (Art. 6, par. 1). According to Article 6, paragraph 3, the couple must express their decision to pursue PMA in writing jointly to the doctor of the facility (first subparagraph). Subsequently, a period of at least seven days must elapse between the expression of their will and the use of the technique (second subparagraph). The decision may be revoked by each member of the couple up to the moment of fertilisation (third subparagraph).
Since its implementation, Law No. 40/2004 has been amended multiple times due to interventions by the Constitutional Court. In this context, it is worth mentioning that in at least two judgments the Court dealt with the erosion of the general prohibition of embryo cryopreservation (Judgment No. 151 of 2009 and Judgment No. 96 of 2015). In the original text of the law cryopreservation was generally prohibited and exceptionally allowed only in documented cases of ‘force majeure’, where a serious and unforeseeable health condition of the woman occurs (Art. 14, par. 3). However, following the Italian Constitutional Court interventions, which aimed to correctly emphasise the women’s psycho-physical health rights, the rule-exception relationship regarding the prohibition of cryopreservation originally established by Law No. 40/2004 has been reversed and the practice of cryopreserving embryos has become routine. Although Article 14, paragraph 3, still mandates implantation ‘as soon as possible’, the erosion of the general ban on cryopreservation has introduced the possibility of a significant temporal dissociation from the couple’s initial consent. As a result, a request for embryo implantation may occur not only long after that consent but also under significantly different subjective conditions than those required for access to PMA.
The Heterogeneity of Man and Woman Position: Not Unreasonable Balance
In the present case, the Italian Constitutional Court was asked to assess whether Article 6, paragraph 3, last sentence, of Law No. 40/2004, which establishes the irrevocability of consent after fertilisation and thus obliges the man to become a father (in case of successful PMA) even against his current will (which may have changed due to changes in the couple’s relationship), still maintains a reasonable balance within the legal framework resulting from the aforementioned Constitutional Court interventions.
According to the Constitutional Court, the objections raised in relation to Article 13, first paragraph, and Article 32, second paragraph of the Constitution are inadmissible for lack of reasoning. Indeed, the Tribunale di Roma did not specifically explain ‘the reasons why the implantation of the embryo, which obviously affects only the woman’s body, would also constitute a medical treatment or, in any case, a constraint on the male body’.
Furthermore, in the Court’s opinion, the question whether the principle of equality has been violated is unfounded. Indeed, the woman’s situation is profoundly different from the man’s: the transfer of the fertilised embryo into the uterus would result in a truly invasive medical procedure for her, which couldn’t otherwise be imposed on her. According to the Court, it is precisely this heterogeneity of the situations that excludes an infringement of the principle of equality since a violation of Article 3 of the Italian Constitution only occurs ‘when substantially identical situations are regulated in an unjustifiably different manner, and not when different regulations correspond to non-assimilable situations’ (ex plurimis, Judgements No. 71/2021; No. 85/2020; No. 13/2018; No. 71/2015).
Additionally, regarding the man’s right to self-determination, the Constitutional Court considers that the questions raised about Articles 2 and 3 of the Constitution are unfounded, as the balancing of constitutionally relevant interests does not exceed the threshold of unreasonableness. Although the aforementioned extension of cryopreservation techniques undoubtedly affects the man’s will to self-determination, the Court highlights several reasons why the irrevocability of the consent given by the male member of the couple is not constitutionally illegitimate. Firstly, the man had been informed of the possible use of cryopreservation and the legal consequences of the PMA, as part of the comprehensive informational channel provided for in Article 6, and on this basis, he gave his consent. Secondly, the consent given by the man under Article 6 of Law No. 40/2004 has a different and broader scope than that attributed to the notion of ‘informed consent’ in medical treatment, since it constitutes an act aimed at establishing the status filiationis. In this perspective, such consent would entail a fundamental assumption of responsibility. Indeed, Article 8 of Law No. 40/2004 states that ‘children born as a result of the use of medically assisted procreation techniques have the status of children born within marriage or of recognised children of the couple who has expressed the intention to resort to the same techniques under the provisions of Article 6’. Finally, the consent expressed by the man entails other constitutionally relevant interests, first and foremost those of the woman. After all, it is the woman who is involved with her own body in the PMA, a particularly invasive medical procedure. Moreover, the woman relied on the partner’s consent and, on that basis, underwent particularly invasive medical procedures in preparation for the PMA. Therefore, the Court goes on, the irrevocability of the consent given by the man appears to be functional to safeguard the psycho-physical integrity of the woman from the negative effects that the interruption of the PMA would have on her when the process undertaken has already reached fertilisation. Accordingly, the Guidelines referred to in the Ministerial Decree of 1 July 2015 establish that ‘the woman always has the right to obtain the transfer of cryopreserved embryos’. The Court’s reasoning then goes so far as to emphasise that the constitutional protection of the embryo – whose ‘dignity’ ‘traces back to the general precept of Article 2 of the Constitution’ – would find the sole limits in the protection of the procreation needs (Judgment No. 151/2009) and the needs related to the woman’s right to health (Judgment No. 96/2015).
Eventually, while addressing the right to private life, the Constitutional Court offers a comparative perspective, highlighting the lack of a ‘European consensus’ on the issue (and the differences in regulation between the States). In particular, the Court refers to Evans v. UK (Judgment of 10 April 2007), in which the ECHRs ruled out a violation of Articles 2, 8, and 14 of the European Convention on Human Rights by the United Kingdom in a dispute concerning the couple’s consent to PMA. The case concerned a similar situation, although the English law expressly allows the man’s consent to be withdrawn up to the moment of embryo implantation. On that occasion, the ECtHR emphasised the wide margin of appreciation which must be allowed to States in resolving a ‘dilemma’ where, as stated in the judgment, any solution adopted by national authorities would result in the total negation of the interests of one or the other party, and concluded that there was no reason to believe that the solution adopted by the English legislature had exceeded the margin of appreciation granted by Article 8 of the ECHR. The Constitutional Court was also aware that the comparative panorama displays a wide variety of solutions, both at the legislative level and in case law. Among these, the Court points out that, in a similar case, the Israeli Supreme Court made the possibility of implantation subject to certain conditions relating to parental responsibility (Judgment of 12 September 1996). Moreover, the Constitutional Court of Colombia is said to have been inspired by this decision, which, in a similar situation, allowed for the assimilation of the father to an anonymous donor (Judgment of 13 October 2022, T-357722).
In the light of these comparative considerations, the Court recognised that, in our legal system, the search for a reasonable balance – even one that differs from the current one – between the conflicting interests at stake in issues concerning ‘ethically sensitive subjects’ (Judgment No. 162/2014) must be left to the legislator. At the same time, it falls to the Court to review the legislative choices to ensure that they achieve a balance that is not unreasonable.
Alas, the Italian legislator frequently seems deaf to such ‘ethical’ calls.
*PhD Candidate, University of Pisa
