Is the latest amendment to Law 40/2004 a positive evolution or a regressive move?

Area of Science:

• Legal Studies
• Bioethics
• Human Rights Law

Background:

• Italian Law N. 40/2004 on medically assisted procreation (MAP) has been subject to significant judicial interpretation over two decades.
• Controversial aspects include embryo disposition, access for single individuals, and recognition of same-sex couples as parents.
• The recent Law No. 169/2024 criminalizes transnational surrogacy, classifying it as a "universal crime".

Purpose of the Study:

• To analyze judicial rulings (Constitutional Court, Court of Cassation, European Court of Human Rights) impacting MAP law in Italy.
• To examine the implications of the new surrogacy law (Law No. 169/2024) on cross-border reproductive arrangements.
• To assess compliance with constitutional principles and the best interests of the child in MAP and surrogacy contexts.

Main Methods:

• Analysis of Italian constitutional and legitimacy jurisprudence.
• Review of European Court of Human Rights rulings.
• Database searches (De Jure, Scopus, PubMed) using keywords related to assisted reproduction, surrogacy, and parental rights.

Main Results:

• Persistent legal ambiguities surround surplus embryos, single individuals' access to MAP, and parental recognition for same-sex couples.
• Current legal interpretations suggest single individuals face significant barriers to MAP access, citing the child's best interests.
• Case-by-case judicial decisions are required for recognizing non-biological parents in same-sex relationships.

Conclusions:

• Judicial bodies cannot resolve fundamental legislative gaps in MAP and surrogacy law.
• Parliament's passage of the universal crime law for surrogacy indicates an unwillingness to advance these complex social and legal issues.
• The "best interests of the child" principle remains central but requires legislative clarity for diverse family structures.