The “Curious Case” of Italian Law no. 40 of 2004: How the Dialogue between Judges is modifying the Legislation on Medically-Assisted Reproduction

Italian Law no. 40 concerning medically-assisted reproduction was approved on 19 March 2004. Italy is among the last of the European countries to regulate a matter which has been considered in the legislation of other countries since the 80s of the last century. Although Law no. 40 has not been modified by the Italian Parliament during the subsequent twelve years, it has been deeply amended by at least 28 judgements issued by Italian courts (the Constitutional Court, as well as the civil, penal and administrative tribunals) and by the European Court of Human Rights, which have progressively dismantled the original text with respect to the following issues: access to assisted reproduction, preimplantation analysis, heterologous fertilisation, etc. The national and supranational courts have established a very interesting juridical dialogue, which has made Law no. 40 more consistent with the Italian Constitution, as well as with the Convention of Rome, the freedom of movement, and other principles established by the European Union. The cases addressing Law 40 of 2004 are quite impressive due to the absence of the necessary balance between the different interests in the Italian law-making process, as well as the failure to verify the consistency of the Italian law with supranational principles. However, this case of Italian law is only an exemplification of how the dialogue among the courts produces the development and application of European law, and how such a dialogue may impact domestic legislation, especially laws regarding very sensitive and delicate issues.