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

Abstract

Purpose: The aim of this article is to illustrate the changes introduced by the rulings of the Constitutional Court and the Court of Cassation concerning the law on medically assisted procreation (MAP) and to offer some considerations on Law No. 169/2024 (Criminalization of Surrogacy, November 4, 2024), which introduces the notion of "universal crime" for transnational surrogacy.

Methods: The authors have analyzed Italian constitutional and legitimacy jurisprudence, as well as the European Court of Human Rights' rulings, to reflect on the law's compliance with constitutional principles regarding the use of criminal law and the safeguarding of the best interests of the child. The national legal database "De Jure" and international databases such as Scopus and PubMed were consulted using the following keywords as search strings: 1) assisted reproduc-tion AND Italian Constitutional Court; 2) assisted reproduction AND Italian Supreme Court; 3) assisted procreation AND Italian Supreme Court; 4) cross-border/international surrogacy, "best interests of the child", "intended/social parents". The authors eliminated duplicates, read the full text of relevant articles, extended the investigation to related works cited in references, and excluded those with purely medical content.

Results: Twenty years after the enactment of Law N. 40/2004, many aspects remain controversial. These include: the fate of surplus embryos; the access of single individuals to MAP techniques; the possibility for same-sex couples to access MAP and be recognized as parents of the child. A delicate issue also concerns granting access to MAP for single individuals. As of today, this possibility seems highly unlikely, as having only one parent is not considered in the best inter-est of the child.

Conclusions: Always in the interest of the child, it is necessary to decide on a case-by-case basis whether to recognize a non-genetically or biologically related homosexual person as a parent. These are all issues to which judges cannot provide an answer. This task falls to Parliament, which, with the law on surrogacy classified as a universal crime, has shown that it does not intend to make progress on these matters.