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Italian Constitutional Court - decision n. 84/2016: prohibition on the use of residual embryos for research purposes
22 marzo 2016

The Constitutional Court held that the questions concerning the constitutionality of the prohibition on the use of residual embryos for research purposes raised by the Court of Florence (“Tribunale di Firenze”) are inadmissible.


 The questions raised concerned: (i) the absolute prohibition of any clinical or experimental research on embryos other than with the aim of their protection (Art. 13), due to violations of Arts. 9, 32, and 33, para. 1, of the Constitution; (ii) the absolute prohibition on the withdrawal of consent after fertilization of the egg (Art. 6, para. 3, last sentence) due to violations of Arts. 2, 13, and 32 of the Constitution; and (iii) Art. 13, paras. 1 to 3 and Art. 6, para. 3, last sentence, […] on account of their illogical and unreasonable nature, due to violations of Arts. 2, 3, 13, 31, 32, and 33, para. 1, of the Constitution. 

The applicants in the main proceedings had cryopreserved nine embryos which were not to be used in the reproductive process; the wish of the parties was to use these embryos for diagnostic medical activities and scientific research in relation to their genetic diseases. 

According to the referring court, the absolute prohibition on any scientific research on residual embryos is in contrast with numerous constitutional provisions due to the unreasonable balancing between the protection of the embryo and the interest in scientific research on unhealthy embryos. 

The Constitutional Court ruled that the question relating to Art. 6, para. 3 (absolute prohibition on the withdrawal of consent after fertilization of the egg) is inadmissible, due to its hypothetical nature and lack of relevance. 

The question concerning the prohibition on research on residual embryos is also declared inadmissible. In this regard, the Court notes that the question: “refers to the conflict – which has serious ethical and legal implications – between the law of science (and the research benefits associated with it) and the right of the embryo in terms of the protection (weak or strong) due to it on account of and in relation to the (greater or lesser) degree of subjectivity and anthropological dignity recognised to it. Lawyers, scientists and civil society itself are profoundly divided regarding the solution to the conflict. So too the legislation, the ethical committees and the special commissions of the many countries that have considered the problem and examined the implications in-depth, cannot by any means be said to have converged upon a general consensus”. 

Referring to previous rulings, as well as to the judgement of the Court of Strasbourg in the Parrillo v. Italy case, the Constitutional Court stated that (unofficial translations) “the dignity of the embryo, as an entity which holds within itself the genesis of life (albeit at a level of development that has not been pre-defined by the legislator and has still not been unequivocally identified by science), in any case represents a value of constitutional significance ‘which may be brought under the general principle laid down by Art. 2 of the Constitution’ […]; the protection of the embryo cannot be weakened (where and) due to the sole fact that it is an embryo affected by a genetic malformation, which has been identified as the rationale for the criminal provision (Arts. 14(1) and (6) of Law no. 40 of 2004) also punishing the elimination of diseased embryos that cannot be implanted […]; like any other constitutional value, the protection of the embryo has also been considered to be open to balancing, in particular with the aim of ‘protecting the needs of procreation’ and the health of the woman”. 

“Thus, confronted with what has been defined as ‘a tragic choice’ between respect for the principle of life (which embraces the embryo, albeit affected by a disease) and the requirements of scientific research – a choice which, as mentioned above, is so deeply divisive on an ethical and scientific level, and which does not find significantly uniform solutions even within European legislation – the reconciliation between opposing interests which may be discerned within the contested provisions pertains to the area of legislation within which the legislator, acting as the interpreter of the general will, is required to strike a balance through legislation between the conflicting fundamental values, taking account of the views and calls for action that it considers to be most deeply rooted at any given moment in time within the social conscience”.

The choice made by the Parliament is characterised by such a high degree of discretion to avoid the constitutional court's review; moreover, “any different weighing” of the conflicting values could not in any case be introduced by an expansive ruling (“sentenza additiva”): “the striking of any other balance between the values in conflict, which the constitutional review seeks to achieve by replacing that adopted by the legislation under review, could not in fact fail to consider (and to engage with) a range of multiple intermediate options, which would also inevitably be reserved to the legislator”.

In the box on the right, find the translation of part of the decision offered by the Constitutional Court.

Full text of the decision in Italian can be found here.

Derek Van Becelaere, Raffaele Guerini
Pubblicato il: Martedì, 22 Marzo 2016 - Ultima modifica: Lunedì, 02 Settembre 2019
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