Giorgio Repetto

'Not by ECHR Alone.' Assisted Reproductive Technology and the Right to Health in Italy and Europe

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In recent years, the right to health granted by Art. 32 of the Italian Constitution has undergone a significant shift. Along with the increasing process of Europeanization of fundamental rights, which was boosted in 2007 in relation to the ECHR, both the individual and the social tenets of the right to health seem to have been progressively blurring. A powerful example of this trend is that concerning assisted reproductive technology (ART). A law passed in 2004 has regulated ART in Italy for the first time ever, albeit with a highly restrictive approach. Many claims over time have challenged the constitutionality of the law and, among them, those affecting the bans on preimplantation genetic diagnosis and on heterologous assisted reproduction remain unanswered to date. The inaction of the Constitutional Court and the unresponsiveness of the legislative branch have therefore pushed the affected couples to apply to the European Court of Human Rights, whose decisions have partially satisfied those claims, albeit with the effect of jeopardizing the centrality of the constitutional right to health and its multi-faceted potentialities. The right to respect for private and family life (Art. 8 ECHR) is indeed focused on the individual side of health issues and mainly lacks any social attitude, with the consequence that 'reproductive' rights (i.e. the right to have a child) are often overestimated with regard to woman's health rights. The inability of this approach to call into question the most critical aspects of the Italian legislation on ART has been demonstrated by the latest decisions of both the judiciary and the Constitutional Court, that have made wide reference to ECHR case law without being able to solve the most debated problems. Given this situation, the author suggests that a preferable solution would be renewed focus on the full fledged enhancement of both individual and social attitudes concerning the right to health.

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