CToday the most controversial of the regulations turns 20 years old. Law 40, created in 2004 to regulate assisted reproduction, has survived (in tatters) the countless trials that called it into question. She escaped a referendum (in 2005). And it is “the law that has ended up in the dock several times, that is, in the Constitutional Court”. He remembers it Filomena Gallo. The national secretary of the Association Luca Coscioni is among the lawyers who have fought most alongside citizens who have been going to the courts for 20 years to challenge these laws and assert their rights. To do this, it has set up a college of jurists to assist couples. In a certain sense it is thanks to her that today something like 14 thousand children are born a yearmany against the initial provisions of the law.
«Many couples in recent years have raced against time, and many have lost. In the silence of the legislator, waiting for the decisions of the courts, for many the age has often passed and there are those who have been forced to give up. This is irreparable damage».
Filomena Gallo: how law 40 has changed, how much it needs to change
Law 40 was approved by Parliament on March 20, 2004 to be signed and published on 19 in the Official Journal and come into force on 10 March. It regulates assisted fertilization, i.e. the use of scientific techniques to overcome couple sterility, and was born flawed. «It contained prohibitions that were neither scientifically nor legally founded and which were recognized immediately and even before it was promulgated», says Gallo.
Many of these limits have been overcome in twenty years of rulings by the Courts, the Constitutional Court and the European Court of Justice. «Twenty years in which governments have changed but the legislator has still been totally immobile», explains the lawyer.
Infertility, the traditional family and the royal one, twenty years later
There is a lot of talk today about measures to support the family: the traditional one, father and mother and children, possibly three, conceived naturally. «But the reality is different, and it is different from what politics wants to affirm», explains Gallo. «For example, why fertility does not wait for conditions to occur, especially economic ones, to raise a family. But also because there are many families, of many types: in the photography of parenthood in Italy there are singles, hetero couples and same-sex couples». It’s like this, it’s already like this.
But it is possible, thanks to science, to access many techniques and become parents even outside the limits set by politics.
Yes to civil unions, no to same-sex families?
«Even beyond that compromise law on civil unions to which Italy was forced by the condemnation of the European Court of Human Rights”. The law, that is, which authorized unions without talking about the children of those unions. «Behind the compromise there is an afterthought, and that is that i two would-be parents would not be a good example for those born. But should we really think that there is a desire to deny wanted children the possibility of having a family? It would be paradoxical.”
Assisted fertilization: the bans abolished and those to be abolished
The prohibitions of law 40 that have been overturned in twenty years of trials? In addition to that of fertilization heterologous (Ruling of the Constitutional Court n.162/2014), the ban on the production of more than three embryos and the obligation of simultaneous transfer into the uterus of all embryos produced (Ruling of the Constitutional Court n.151/2009). The Ban on pre-implantation diagnosis (for infertile couples only). The ban on access to MAP for fertile but carrier couples genetic pathologies (Constitutional Court ruling n.96/2015). The Ban on embryo selection for therapeutic and diagnostic purposes (unconstitutionality n. 229/2015.)
There are precisely two left: the dban on the use of embryos for scientific researchapprox and revocation of consent and the Prohibition of access to assisted reproduction for singles and same-sex couples.
Every year the UN Committee for Social Rights asks Italy to remove obstacles to access to all Pma techniques. As well as to introduce the possibility of using gametes that are not suitable for implantation for scientific research. These are the two fundamental points on which Filomena Gallo is ready to fight, again and again.
Gametes from abroad, regional differences, pre-implantation diagnosis: the critical points
But even for assisted reproduction techniques that are legal in our country, access remains an obstacle course. For example, the heterologist. «While abroad, quite simply, a reimbursement of expenses is provided for the woman who donates her eggs of around 1100 euros, we import all the gametes”, explains Gallo. And we certainly don’t save money, but we complicate our lives.
Pre-implant diagnosis? It is legal, of course, but it is not in the LEAs (the list of services guaranteed by the National Health Service) and this creates a condition of evident discrimination.
Again, the regional differences. «Those who want to access heterologous assisted fertilization in Sicily can only do so privately», explains Gallo. «And this is because the tenders for the procurement of gametes from abroad have not been announced. Furthermore, there is a plan to reduce health spending which has imposed a block on mobility between regions.” And so there is no choice but to pay.
«It’s not better in Puglia where all the third level centers, which deal with heterology, are under renovation. It is possible to head towards other regions only with minimum ISEE.”
Pregnancy for others in solidarity, Italy is ready
The last theme to touch on is that of supportive pregnancy for others. The same Philomenin Gallo she was among the editors of the bill currently filed in the House and Senate to legalize it, without exploitation and commercialization.
The proposal, Gallo assures, is not against the sensitivity of Italians. Did MPs vote to declare surrogacy a universal crime? Citizens think differently: they are capable of solidarity. «I clearly remember how many women have offered, in 2021, to carry on a supportive pregnancy in place of Maria Sole Gardenssuffering from Rokitansky Syndrome, and was born without a uterus. The court said no and she was unable to become a mother. But many Italians would have been ready to help her.”
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