Chiara Tripodina

Studio sui possibili profili di incostituzionalità della legge n. 40 del 2004 recante "Norme in materia di procreazione medicalmente assistita"

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In this study the author analyses the most critical profiles of Law n. 40 of 2004, containing norms in the matter of medically-assisted procreation, in an attempt to identify both the provisions that might be challenged because of doubtful constitutionality and the arguments that might lead to the acceptance or rejection of such doubts. In particular, in the belief that the decision by lawmakers to recognise that an embryo has rights from the time of conception is debatable but not contrary to the Constitution, the author examines the normative consequences ensuing from the same, most of all in terms of the limits placed on the freedom to perform scientific research on the stem cells of embryos; the negation of medicine's autonomy in the choice of optimal therapeutic practice; and the detriment to the health of women who, desirous of motherhood, subject themselves to techniques of medically-assisted fecundation. In all these matters the author finds profiles of constitutional illegitimacy, which in his view derive from a less than perfect balance of the constitutional interests involved. As instead regards the restrictions that the law places on access by certain subjects to techniques of medically-assisted procreation, in the author's opinion such are not unconstitutional in that they fall under the discretion of lawmakers to identify the instruments judged most suitable for guaranteeing the protection of those born as a result of artificial procreation.


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