The Italian Constitutional Court has ruled that women will be able to use embryos conceived with their husband or partner, even if they do not have their consent or are divorced.
In this way, the man will not be able to revoke his paternity after in vitro fertilization. Only the woman can decide about the future of the embryo, but the man must assume the responsibilities related to the baby. The central issue of this decision is that the ruling places in priority the right of the embryo to develop and, therefore, the will of the mother when she decides to gestate her child, as it cannot satisfy the interests of both parties.
Precedents
This ruling is the first of its kind to come to light in Italy, caused by the specific case of a couple from Lazio. When they were both married, they resorted to in vitro fertilization, but decided to freeze the embryos due to the woman’s physical problems. The couple legally separated in 2019, three years after freezing the embryos. It was then that the husband withdrew his consent for the implantation of these in the woman’s uterus. According to the newspaper ABC, the woman’s lawyer, Gianni Baldini, director of the Medically Assisted Procreation Foundation (PMA), presented before the Court of Rome the constitutional legitimacy of an article of the law on assisted fertilization, which establishes the irrevocability of the man’s consent after the fertilization of the oocyte.
According to Baldini, this law «recognizes the right of the embryo to develop and, consequently, that of the separated or divorced woman to proceed with the implantation of the embryo, even against the will of her ex-partner, who is obliged to assume all moral obligations.» and economic problems related to the child born even years later.» The husband, for his part, appealed to the Court of Rome, which, in turn, referred the case to the Constitutional Court, and now the ruling favorable to the woman has been made public.
Judge Luca has stated that «Access to assisted fertilization entails for women the serious burden of making their own body available, with a significant physical and emotional investment that involves risks, expectations and suffering, and that has a point of inflection when one or more embryos are formed. The woman’s body and mind are, therefore, inextricably involved in this process, which culminates in the concrete hope of generating a child, after the implantation of the embryo in her own uterus,» highlights the ruling.
A historic ruling that defends the dignity of the human embryo.
The Constitutional Court refers to the dignity of the embryo in this historic ruling. The judges consider that the irrevocability of consent on the part of the man protects the human dignity recognized in the embryo, since it «has within itself the principle of life.» The woman’s choice offers her the possibility of developing and being born, despite the crisis that occurred in the couple. The ruling of the Constitutional Court thus represents an important advance in the protection of the right to life from the moment of conception.
Bioethical assessment
The most notable thing about the bioethical analysis of this case is that in the dilemma posed, the conflict that arises in the exercise of the right to autonomy by the parents has not been placed at the center of the assessment, which they express conflicting intentions about continuing with the pregnancy of their child, an embryo that remains cryopreserved, or not.
Frequently, when faced with this type of dilemma, another value at stake is not sufficiently taken into account, such as the life of the embryo itself.
According to the ruling we are commenting on the dignity that corresponds to an individual of the human species recognized in the embryo, as it is in reality, which requires that its rights be respected, the first of which is the right to life.
Other considerations, such as the father’s will to assume paternity or not, are not placed at the same level in terms of their recognition as a right as the inalienable imperative to respect the life of the conceived child.
The drama of the millions of embryos left over from the fertilization processes in vitro that remain cryopreserved awaiting an uncertain fate, such as indefinite freezing, thawing for experimental use or, simply, their destruction, is an exponent of the degree of insensitivity that scientists and legislators have reached with respect to the recognition of the status of an individual of the human species that every human embryo possesses, which confers dignity and rights.
The novelty of the sentence we are commenting on is that other rights, such as parental autonomy, appear as subsidiary to the first of them all: the right to life, in this case, of the child, who, even when immature, is a human being, like their parents.
