THE PROTECTION OF THE EMBRYO AND THE IRREVOCABILITY OF THE CONSENT TO MEDICALLY ASSISTED REPRODUCTION: A RECENT PRONUNCIATION TRIES TO MAKE CLARITY BUT THE DOUBT REMAINS.
The embryos created and cryopreserved by a couple, who in the meantime have separated, can be implanted in the woman's uterus even against the will of the ex-spouse. This is established by a recent order, pronounced on January 27, 2021 by the first civil section of the Court of Santa Maria Capua Vetere, in the context of proceeding no. 9240/2020 r.g. [to download the Court order].
The decision was adopted following a complaint against an order pursuant to the art. 700 of the Civil Procedure Code, with which the Court, despite the express refusal of authorization by the ex-partner, had ordered a specialized medical center in Caserta to implant in the woman the embryos generated through “medically assisted procreation” procedures. At the beginnings there was the consent of both partners. The embryos were preserved as the woman had suffered health problems, which were then resolved, but the separation took place in the meantime.
This is a pronunciation destined to cause discussion. It recognizes a woman's absolute right to use the embryos created with her spouse and then frozen, even after separation and despite the express opposition of the man.
The matter is regulated in Italy by law no. 40 of February 19, 2004 [to read the law], which in its art. 1 clarifies how access to medical-surgical techniques aimed at “promoting the solution of reproductive problems deriving from human sterility or infertility” is allowed only on condition of ensuring “the rights of all those involved, including the child" and only "if there are no other effective methods to remove the causes of sterility or infertility”.
In art. 4, after reiterating that “the use of medically assisted procreation techniques is allowed only when it is ascertained that it is impossible to otherwise remove the impeding causes of procreation”, the Legislator dictated the principles to access to these techniques, identified in “Graduality, in order to avoid recourse to interventions having a more burdensome degree of technical and psychological invasiveness for the recipients”, and in the “informed consent”, to which the entire art. 6 of the law. The last paragraph of art. 4 prohibited the use of heterologous fertilization techniques, but the sentence 10 June 2014 n. 162 of the Constitutional Court declared its illegitimacy.
Art. 5 establishes that the techniques in question can be accessed by “adult couples of different sexes, married or cohabiting, of a potentially fertile age, both living”.
Art. 6, as mentioned, is dedicated to informed consent and establishes the obligation for the doctor to inform patients in detail “about the methods, bioethical problems and possible health and psychological side effects resulting from the application of the techniques themselves, on the probabilities of success and on the risks deriving from them, as well as on the relative legal consequences for the woman, for the man and for the unborn child”. The information must also concern “the possibility of resorting to adoption or custody procedures [...] as an alternative to medically assisted procreation”. Furthermore, the information must be provided with regard to “Each of the techniques applied and in such a way as to guarantee the formation of a conscious and consciously expressed will”.
In fact, according to the third paragraph of the same art. 6, “the will of both subjects to access medically assisted procreation techniques is expressed in writing jointly with the doctor in charge of the facility” and, “between the manifestation of the will and the application of the technique there must be a period of not less than seven days”. Finally, a very important rule is provided for by the last line of the same third paragraph, according to which “the will can be revoked by each of the subjects indicated in this paragraph until the moment of fertilization of the ovum”.
Articles 8 and 9 of the law are dedicated to the protection of the unborn child, who is qualified as a child of the couple, with the express prohibition of exercising the action of denial of paternity (pursuant to Article 235 of the Italian Civil Code) and of the anonymity of the mother (pursuant to art. 30 of Presidential Decree 396/2000). Furthermore, in the case of heterologous fertilization, the donor does not acquire any parental relationship with the unborn child and cannot claim rights or be the holder of obligations towards him.
The art. 13 and 14 are instead dedicated to the protection of the embryo, on which any experimentation is prohibited and whose cryopreservation is also prohibited, except on a temporary basis and only in cases of documented force majeure, not foreseeable at the time of fertilization.
This is the legal framework of the order of the Court.
The pronunciation is based on two key principles.
First, the protection of the embryo.
In fact the judge is concerned to reconstruct the reason why the law 40/2004 was enacted. It highlights how the protection of the cryopreserved embryo and its interest in life and its development is fundamental for the Legislator, where the only alternative for the cryopreserved embryo is to remain frozen for an indefinite time. In this regard, the Court said that the “Law 40/2004 protects not only the interests of individuals who access the medical assisted procreation but also the public interests that involve the genesis of life of an ethical and sanitary nature”. In the art. 1 of the law the Legislator talked about “the rights of all those involved, including the child”. Furthermore, “in the preparatory work for the law, the right to life of the embryo on which the entire structure of the law is built is expressly mentioned; the conceived is undoubtedly identified with the embryo”.
The second principle is the legitimate expectation that arises at the time of consent to the treatment of the medically assisted procreation loaned by both members of the couple. The circumstance that the family and marital relationship, which constitutes the origin of the parental project that the couple intended to carry out, failed with the separation decision, is unsuitable for removing such custody.
In fact, on the one hand, the art. 6 of Law 40/2004 expressly establishes the irrevocability of consent after fertilization and, on the other hand, as stated in the pronunciation in question, the art. 8 “attributes to the manifested will, irrevocable with fertilization, a determinative function of maternity, paternity and the status of child”, so that “the freedom to procreate is exercised and is exhausted with fertilization, admitting the law the freedom of rethinking only up to the same fertilization”.
The Court therefore denied that its decision could represent a violation of the fundamental rights of the person, provided for by the Constitution, of individual freedom, health and self-determination.
The Court also clarified that consent, although in the health sector does not generally constitute “agreement” but rather “assent” (an expression of will that represents only the authorization for the doctor to proceed with the health treatment, which is always revocable), in this case takes on a different value to protect superior public interests.
Medicine and medical technologies have made great strides over time. Every day is announced discovery, a revolutionary therapy, a life-saving solution, but, as often happens, human events are capable of opening up to completely unexpected scenarios, which impose difficult social and human solutions, even before the legal ones.
Thanks to the cryopreservation techniques of gametes, it is possible to separate the moment of conception, carried out by the doctor, from that of pregnancy and childbirth, following the implantation, in the woman's body, of the embryo stored in the test tube. With the consequence that, regardless of the existence of that couple relationship on which the parental project found its justification, in the presence of a law that expressly sets a specific time from which the consent given is no longer revocable, it will be possible to reach conception of a child who will assume the status of a child.
But it seems legitimate to ask if is it really right to consider irrevocable the consent?
The interpretation proposed by the Court is correct only if we consider the wording of the regulation, its scope and also the sense of the law. The law on the medically assisted procreation is in fact the result of an ethical and political debate that has led to the recognition and guarantee, with considerable delay compared to the rest of the international community, the right to parenthood to be implemented through the help of science to all those couples in search of a pregnancy.
The will to procreate arises from the desire to welcome together a new life and to unite in such a profound way as to allow the birth of a family.
In an interesting article on parenting, the psychotherapist Alberto Stilgenbauer said that “the choice of paternity cannot be separated from the construction of the couple's generative welcome, from the encounter with the mutual other desire for motherhood. This is fundamental to create the emotional environment in which conception will find acceptance” [to read the article].
In my humble opinion, the question, urgently decided by the Court, is indeed much more complex and probably it would have deserved a more in-depth analysis, also with the involvement of psychologists and psychotherapists and in a more articulated contradictory between the parties, which in the rite provided for by art. 700 of the Civil Procedure Code it is not always effectively possible.
The birth of a child should be a spontaneous and happy decision, made by mutual agreement of those who desire it intensely and who will be ready to welcome his coming into the world with joy.
The right of the unborn child would find more suitable protection if we guaranteed a birth in a climate of love, serenity and acceptance: in fact, creating an emotional, healthy and balanced environment is essential for the psychophysical well-being of the child and for the construction of his identity.
Psychological well-being is thought to derive from personal characteristics such as adaptation, skills and abilities. But self-esteem and self-confidence are attitudes and characteristics that are built over time and they come from the first relationships of childhood, those that are established with one's parents.
In conclusion, always in my humble opinion, no right can be fully protected if it is admitted that a child can be conceived against the will of one of its parent, damaging the right to free expression of thought and free self-determination, and “condemning” the unborn child to grow up in a context of obvious discomfort, where those who should love him most in the world have even resorted to a court to prevent his birth.