Fecondazione eterologa: il pendolo tra Corte costituzionale e Corte EDU

Translated title of the contribution: [Autom. eng. transl.] Heterologous fertilization: the pendulum between the Constitutional Court and the EDU Court

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Abstract

[Autom. eng. transl.] The note addresses the problem of the constitutional legitimacy of the prohibition of heterologous fertilization provided for by law n. 40/2010, drawing inspiration from the ruling of the Constitutional Court n. 150/2012 made in the context of the related qlc raised by various Italian courts in 2010-2011. Clarified at the outset that the issue cannot be dealt with exclusively in light of the interposed norms of the European Convention on Human Rights and critically evaluated the consensus theory adopted by the ECtHR, which leads to an unjustified departure from the doctrine of constitutionalism, the paper focuses on the relationship between heterologous fertilization and the constitutional principles of non-discrimination, protection of parentage and protection of health. In this perspective, first it is argued that precisely the principle of equality, which postulates identity or the reasonable analogy between the situations to be subjected to equal treatment, highlights an unbridgeable difference between couples whose sterility does not prevent the sharing of own gametes (to which access to the homologous PMA is guaranteed) and couples whose sterility prevents the pooling of gametes in the root and therefore the generation of a child, and cannot therefore be adduced as a justification for the hypothetical recognition of the second right to access the heterologous PMA. Below, it is evident that the constitutional notion of filiation presupposes the normal coincidence between biological parenthood and social parenting and allows a dissociation between the two only in the presence of an ascertained parental incapacity to take care of the child, thus being able to constitutionally justify the adoption, as a remedy aimed at giving a substitute family to a minor who has already been born without a remand, but not also heterologous fertilization, with which a child is born in order to satisfy the aspiration to social parenthood of those who cannot be biological parents and an artificial rift is created between the biology and the biography of the person. Finally, it is emphasized that the notion of health, which however broad must remain inter-subjectively communicable, under penalty of its juridical impracticability, does not allow to qualify as a therapy of sterility or infertility of the couple the provision of gametes external to the couple itself , which is realized through the heterologous person, if not at the price of equating his simulation with a reality (procreation) and therefore suggests to prefer - as tools aimed at satisfying the desire for non-biological parenting - both the adoption of minors who adopt abandoned embryos.
Translated title of the contribution[Autom. eng. transl.] Heterologous fertilization: the pendulum between the Constitutional Court and the EDU Court
Original languageItalian
Pages (from-to)212-239
Number of pages28
JournalEUROPA E DIRITTO PRIVATO
Publication statusPublished - 2013

Keywords

  • diritto alla salute
  • fecondazione eterologa

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