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PREǧIMPLANTATION GENETIC DIAGNOSIS UNDER THE EUROPEAN COURT …
causes impeding procreation (Article 4). Following the adoption of the Ministry of
Health’s Decree No. 31639 of 11 April 2008, access to assisted procreation has been
extended to couples in which the male partner suffers from a sexually transmissible
disease. In both the cases, the couples must be composed of living heterosexual
adults, of a potentially childbearing age, who are married or cohabitees (Article 5,
Law No. 40/2004).
PID is not explicitly mentioned in Law No. 40/2004, which rather contains
very ambiguous provisions on the matter. On the one hand, Article 13 prohibits any
form of eugenic selection of the embryos, as well as any experiment on them, with
the sole exception of tests pursuing therapeutic and diagnostic purposes, aimed at the
protection of the embryo’s health and development. On the other hand, Article 14
grants, to couples attempting an
in vitro
fertilization, the possibility to know “the
state of health” of the embryos to be transferred
in utero
, implicitly admitting
a genetic investigation to obtain such information.
The PID is considered in more detail in the guidelines issued by the Ministry
of Health in 2004 and 2008. In their first version, the guidelines – clarifying
the limits imposed on scientific research according to Articles 13 and 14 of Law
No. 40/2004 – firmly banned the pre-implantation diagnosis for eugenic purposes
and stated that any investigation of the health status of
in vitro
generated embryos
had to be “observational” in nature. Such a limitation, however, was eliminated
in the 2008 version, following a pronouncement by the Regional Administrative
Tribunal of Lazio.
2
Therefore, the guidelines currently in force expressly prohibit pre-
implantation diagnosis designed at eugenic selection only.
In the case
Costa and Pavan
, the ECtHR held that there had been a violation of
the right to private and family life to the detriment of the applicants (Article 8 of
the ECHR), but did not find an infringement of the principle of non-discrimination
(Article 14).
3
2
In the Judgement No. 398, released on 21 January 2008, the Regional Administrative Tribunal of
Lazio held that the imposition by a Ministry of Health’s instrument of the “observational” limit to the
scientific research constituted an abuse of power.
3
The Court did not analyse in depth the issue under the perspective of Article 14, simply excluding
a violation of the prohibition of discrimination with reference to the pre-implantation diagnosis, which
is banned without any exceptions under the Italian system.
A closer analysis could have led the Court to recognize an infringement of Article 14, since the access
to
in vitro
fertilization (as a premise of the DIP) is consented to couples where the male partner is
a carrier of a sexually transmissible disease, but not to healthy carriers of a serious hereditary disease.
More in detail, the situation of those who want to prevent the transmission of genetic disease can
be easily assimilated to the condition of those who wish to prevent the infection of a foetus: in both
cases, the risk to give birth to a baby affected by a disease (of whatever nature, hereditary or sexually
transmissible) is the factor motivating the couple to abstain from procreation, to the detriment of any
legitimate aspiration to become parents. See Ludovica Poli, ‘La diagnosi genetica pre-impianto al vaglio
della Corte Europea dei diritti dell’uomo’ (2013)
Rivista Diritto Internazionale
119, pp. 127-128.