CYIL Vol. 4, 2013

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.