Angela Cossiri

The Constraints Deriving from International Obligations Between Hermeneutic Role and Residuality. Some Remarks on Judgment 162 of 10 June 2014

  • Abstract

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Keywords: Heterologous; Medically Assisted Reproduction; Fundamental Rights; Balance; Health; Proportionality.

On June 10th 2014, the Italian Constitutional Court decided on constitutional complaints against the prohibition of heterologous insemination, contained in the law 40/2004, which regulates medically assisted reproduction (MAR). The extremely prohibitive Italian legislation was repeatedly banned by the Constitutional Court and the European Court of Human Rights, in reference of violation of fundamental freedoms. In this case, the declaration of unconstitutionality results by the irrational balance of constitutional interests, which produces an excessive suffering of the rights to procreation and to wellness for absolutely unfertile couples. From the decision emerge points to be considered about the relationship between conventional and domestic legal systems and between Courts: it can be supposed that the Constitutional Court uses the constraints deriving from international obligation as a residual parameter, with the aim of expand fundamental rights warranty.

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