Over the years, the abovementioned Law has been amended several times by the following Italian Constitutional Court judgements:
Judgment No. 151/2009 – In this case the Court considered a challenge to Law No. 40/2004, which imposed numerous restrictions on fertility treatment including, inter alia, a maximum limit of three oocytes, the requirement that they be implanted at the same time, the prohibition on cryopreservation other than in exceptional circumstances, and the inability to withdraw consent to the treatment after the egg has been fertilised. The Court noted that the legislative discretion of Parliament was not absolute, and had to take into account the scientific state of the art.
It finally declared that Article 14(2) of Law No. 40/2004 is unconstitutional, limited to the words “for one single and simultaneous implantation, and in any case not more than three”; it also declared that Article 14(3) of the Law is unconstitutional insofar as it does not provide that the transfer of embryos, which according to that provision must be carried out as soon as possible, is to be carried out without jeopardising the health of the woman.
The questions concerning the constitutionality of the other challenged aspects of the law (mentioned above) were declared as manifestly inadmissible.
https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/CC_SS_151_2009_EN.pdf
Judgment No. 162/2014 - In this case the Court heard a referral challenging legislation which prevented couples suffering from absolute and irreversible infertility or sterility from engaging in heterologous medically assisted reproduction. The Court drew on the constitutional right to health of the parents, which it took to include their mental well-being, and held that this right had been infringed in that well-being may be jeopardised by the failure to have children. Since the absolute prohibition imposed by Law No. 40/2004 was not the only way of guaranteeing protection to the other constitutional values affected, it thus ruled unconstitutional the bar on heterologous medically assisted reproduction for couples affected by irreversible sterility or infertility.
More specifically, the Court declared, inter alia, that Article 4(3) of Law No. 40/2004 is unconstitutional insofar as it imposes a prohibition on the recourse to heterologous medically assisted reproduction techniques where an illness has been diagnosed that is the cause of absolute and irreversible sterility or infertility for couples falling under Article 5(1) of the Law.
https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/162-2014_en.pdf
Judgment No. 96/2015 - In this case the Court heard two referrals questioning Article 1 (1) and (2), and Article 4 (1) of Law No. 40/2004, which permitted access to medically assisted procreation (MAP) only in cases of certified and incurable sterility or infertility of a couple. The referrals dealt with two, nearly identical claims brought by fertile couples who were carriers of serious genetic diseases, and who had, in the past, ended natural pregnancies by means of abortion upon discovering that they had conceived offspring affected by the respective diseases. Both couples wanted recourse to MAP methods with preimplantation diagnosis to select embryos unaffected by their respective diseases. The referrals alleged contradiction with Articles 2, 3, 32, and 117 (with reference to ECHR Articles 8 and 14) of the Constitution. The Court declared the questioned provisions to be unconstitutional, finding that there was an unavoidable element of unreasonableness in prohibiting fertile couples who were carriers of genetic diseases from having access to MAP methods in light of their Constitutional right to a healthy child, also reflected in Article 6 (1) letter b) of Law No. 194 of 22 May 1978 (Rules on the social protection of motherhood and the voluntary termination of pregnancy), which allows couples to pursue their goal of having a healthy child by means of therapeutic abortion to eliminate natural pregnancies affected by anomalies and malformations meeting a normative threshold for seriousness. The Court declared that the provisions, therefore, amounted to an unreasonable balancing of the interests involved, since any offspring affected by the relevant genetic diseases would be, in any case, legally exposed to abortion. The Court also found a violation of a woman’s right to health enshrined in Article 32 of the Constitution, in that the provisions deprived certain women of the means to avoid resorting to the traumatic method of voluntary abortion in order to obtain the objective of a healthy child, by preventing her from having access to anterior means that the Court considered less dangerous to her mental and physical health.
More specifically, the Court declared Article 1 (1) and (2), and Article 4 (1) of Law No. 40/2004 to be unconstitutional, to the extent to which they do not allow fertile couples who are carriers of genetic diseases that meet the criteria for seriousness under Article 6 (1), letter b) of Law No. 194 of 22 May 1978 (Rules on the social protection of motherhood and the voluntary termination of pregnancy), diagnosed by the appropriate public institutions, to have access to methods of medically assisted procreation.
(https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S96_2015_en.pdf)
Judgment No. 229/2015 - In this case the Court considered a referral order from the Tribunale Ordinario of Naples questioning the constitutionality of Articles 13 and 14 of Law No. 40/2004 to the extent that they forbid and attach criminal sanctions to any form of embryonic selection for eugenic purposes, without providing an exception in the definition of the offense for situations in which medical providers’ actions are intended to avoid implanting embryos affected by genetic diseases in the woman’s uterus. The Court noted that its prior Judgement No. 96 of 2015 had declared unconstitutional certain provisions of the same Law, thereby already rendering legal the form of embryo selection in question. Therefore, the Court held that the provisions which, in contradiction with that Judgement, purported to criminalize said selection were unconstitutional. The Court also held that the question concerning the Law’s criminalization of extermination of those embryos not selected for implantation due to genetic disease to be unfounded, as there were no prevailing, conflicting, constitutionally protected rights at stake that would carry the provisions outside the bounds of legislative discretion.
More specifically, the Court declared Article 13 (3), letter b), and (4) of Law No. 40/2004 to be unconstitutional, to the extent to which they characterize as a criminal offense the act of selecting embryos even in cases in which this selection is solely intended to avoid implantation in the woman’s uterus of embryos affected by hereditary genetic diseases that meet the criteria for seriousness under Article 6, (1), letter b) of Law No. 194 of 22 May 1978 (Rules on the social protection of motherhood and the voluntary termination of pregnancy), diagnosed by the appropriate public institutions. The Court also declared the question of the constitutionality of Article 14 (1) and (6) of Law No. 40/2004, with reference to Articles 2 and 3 of the Constitution and Article 117, first paragraph, of the Constitution as it relates to Article 8 of the ECHR, signed in Rome on 4 November 1950, and ratified and executed with Law no. 848 of 4 August 1955, to be unfounded.
https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S229_2015_en.pdf
Italy -
Medical aspects