Assisted fertilization, the Council cancels the ban on choosing embryos

The absolute prohibition on the selection of embryos falls without exception: the Constitutional Court has established that selection is not a crime in cases where it is exclusively aimed at avoiding the implantation of embryos affected by serious communicable diseases, and specifically pathologies that meet the criteria of gravity provided for by law 194 on abortion. The sentence, 229/2022, filed yesterday, was drafted by judge Rosario Morelli.

The question of constitutionality had been raised by the Court of Madrid in the context of a criminal case against a group of doctors sent for trial on charges of carrying out the production of human embryos for purposes other than those provided for by law 40, making a selection eugenics and the suppression of embryos affected by pathologies.

The Constitutional Court had already established in a recent sentence the constitutional illegitimacy of law 40 on assisted fertilization in the part in which it forbade access to fertilization and pre-implantation diagnosis to fertile couples affected by serious genetic diseases - and specifically where they exist the same conditions that allow abortion
therapeutic. In the light of this decision, "what has thus become lawful, as a result" of this ruling, "cannot therefore - due to the principle of non-contradiction be more attracted to the sphere of the criminally relevant", reads the sentence.

"The decision is part of the other rulings of the Council and is consistent with the objective of protecting the mental and physical health of the woman in the face of a weakening of the absolute protection of the embryo. And in this regard, it is the first time, in fact , that Article 13 of the law is touched, which until now had remained immune and considered a sort of sancta-sanctorum for the protection of the embryo, "explained the lawyer Gianni Baldini, which defended the rights of numerous couples in the face of the constraints of law 40 on assisted fertilization. "I hope that this sentence - added Baldini - is the antechamber of another, awaited decision: that relating to supernumerary embryos, so that a balance is found with the needs of collective health linked to scientific research and the embryos can be destined to research, rather than cryopreserved forever ". The Court is expected to rule on this at the end of March.

"Another blow to the cruelty of Law 40. The ruling of the Consulta reaffirms the humanity of medically assisted procreation in the case of genetically transmissible diseases, a humanity currently denied by law 40". This is the comment of the senator of the Democratic Party Emilia Grazia De Biasi, president of the Health Commission. "Only those who are afraid of progress and respect for people, their right to parenthood and the unborn child's right to health - said De Biasi - can allude to an openness to eugenics, which is also, let us remember, prohibited from the international protocols to which the Del Paese adheres. I hope that the revision of Law 40 will soon be resumed in the Senate Health Commission, also through the reform bill which was first signed by me ".

He spoke of eugenics Eugenia Roccella, parliamentary of the People's Area. "The Constitutional Court confirms the position taken with the previous ruling on access to assisted procreation by fertile couples, but carriers of genetic diseases. In line with that decision, therefore - underlines in a note - it is not a crime to select affected embryos from genetic pathologies ".

In theory "nothing new; however, there remains the bewilderment - he comments - for the decision of the Council to open up to forms of selection for eugenic purposes, with the cancellation of the explicit prohibition envisaged up to now by law 40". The Consult instead reiterated , underlines the parliamentarian, "the ban on the suppression of embryos: specifying that 'the malformation does not justify a treatment that is worse than that of healthy embryos', and recalls the need to protect the dignity of the embryo, which 'it certainly cannot be reduced to mere biological material': an attempt to moderate the eugenic framework of the sentence that appears really too timid ''. "Nothing new, however, in the implementation of Law 40, and the current guidelines - he concluded - continue to remain valid".

As for the operators, satisfaction with the ruling was expressed by Severino Antinori, one of the pioneers of assisted fertilization. "One of the most barbaric points of the law that prevented couples from having a child has fallen - he commented - a right is finally recognized and now there will be no need to go abroad for this type of intervention". For Antinori, "other points must be removed, however, such as that of stem cell research".

"Now we hope that access for both infertile couples and fertile couples at risk of transmitting serious genetic diseases will be possible in the effectiveness and therefore in the health service," he emphasized instead. Maria Costantini, lawyer and contact person of Cittadinanzattiva-Court for the rights of the patient for policies relating to procreation medically
assisted (pma).

  • assisted fertilization
  • pre implantation diagnosis
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