“The Alabama ruling goes beyond the law, one can speak of theologising” these are the words of Sergio Sulmicelli, a doctoral student in comparative and European legal studies at the University of Trento, regarding the ruling that equates embryos produced by in vitro fertilisation (IVF) with children. He adds: “Because it is a decision that makes constant references to the Bible and the sanctity of life”. IVF is the targeted meeting of egg and sperm outside the uterus, carried out with precision and care in specialised laboratories. Since its first birth in 1978, IVF has been one of the most widely used techniques in the field of medically assisted procreation (PMA). The case before the Alabama courts originates from the negligent destruction of cryopreserved embryos at the Center for Reproductive Medicine. Following this incident, three pairs of parents affected by the loss of their embryos filed a lawsuit against the clinic. In the first instance the claim was rejected, because the in vitro frozen embryos could not yet be considered persons. On the contrary, the supreme court ruled that although there is no actual birth, the embryos must be considered already children, with respect to the recognition of punitive damages resulting from their destruction.
‘The supreme court, in order to justify the choice made, cites Italy (along with New Zealand and Australia) as a western country that has showed very definite ideas on the subject of maternity. In particular,’ says Sulmicelli, ‘about our country they say that Italian legislation has imposed a ban on cryopreservation’. The doctoral student specifies, however, that this limit was repealed by the constitutional court in 2009, but that this update was not contemplated by the American judges. In Italy, the subject of PMA is regulated by law 40/2004, and ‘like any discipline that is an expression of politics,’ he adds, ‘we can see the legislator’s difficulty in pronouncing on the subject of scientific progress. In fact, the constitutional judges have had to intervene several times with regard to a text that was considered, in the legal sphere, too religious and therefore full of prohibitions considered unreasonable. Law 40/04 continues to have a problem of linearity with the Italian discipline, as in the case of homosexual couples who can unite in marriage but are not given the possibility of heterologous fertilisation. On this issue, the Italian constitutional court said it had no jurisdiction, leaving the matter to the parliament, where the balance between morality and law is always difficult to find.
The Alabama ruling wants to recognise a legal personality of the embryo, which would once again lead to a ban on the right to abortion. Embracing this idea, however, would mean restricting one aspect of PMA, which is itself a pro-life practice.
