Judgment No. 221 of 2019
Giorgio LATTANZI, President, Franco MODUGNO, Author of the Judgment
In this case, the Court considered two referral orders challenging provisions of Law no. 40 of 2004.
The law limits access to medically assisted reproduction (PMA) procedures to married or cohabiting,
different-sex couples of which both members are living and of potentially fertile age.
It also imposes penalties such as fines and licensure suspensions for medical practitioners,
and suspension or revocation of authority to provide PMA services for facilities found guilty of providing PMA services to couples
or individuals not qualified under the law. The referring courts, both of which were hearing cases involving female same-sex
couples in civil unions who were seeking access to PMA procedures, challenged the sexual diversity requirement and the related
sanctions, relying on both constitutional and international provisions. The Court first held that its judgment could only apply
to female same-sex couples, although one of the Courts did not make this distinction, because neither court challenged
the separate law imposing a total ban on surrogate motherhood and gestational carrying, procedures necessary for
reproduction by male same-sex couples, which are strictly illegal in Italy. Then, on the merits, the Court held that the questions were unfounded.
Stressing the plurality of constitutional interests involved, the rapid pace of medical
and scientific advancements, and the ethically sensitive nature of many of the relevant
questions, the Court held that identifying a reasonable balancing fell chiefly to the evaluation of the legislator,
subject only to review by the Constitutional Court to ensure that its solution was not unreasonable. Here the Court
cited the European Court of Human Rights [ECtHR], which had held, in a PMA-related case, that States have a wide margin
of appreciation in areas where there is no general consensus at the European level, and also that States may legitimately
limit the use of PMA procedures to the therapeutic purpose of curing infertility. The Court observed that the Italian law in
question had, in fact, expressly done this, limiting PMA to couples who, but for a pathology causing irreversible infertility
or sterility, could reproduce naturally (different-sex couples in which both members are alive and of potentially fertile age).
Distinguishing this case from two earlier cases, in which the Constitutional Court had expanded access to PMA under this same law,
the Court held that, in the earlier two cases, it had worked to remedy clearly unreasonable inconsistencies within the law, without
affecting its underlying purpose or overall framework. It held that the present challenges were on an entirely different plane, and
would require a repudiation of the ideas underlying the law, which it held was unwarranted. After reiterating the well-established
law that same-sex couples who are cohabiting or joined in civil unions are ?families? under the Constitution, the Court also reiterated
its reliance on the ECtHR to hold that a therapeutic purpose was legitimate as a basis for limiting access to PMA. This limitation was
not discrimination on the basis of sexual orientation, it held, because the physiological inability to reproduce of all same-sex couples
could not be equated to medical infertility or sterility in heterosexual couples of fertile age, and was, instead, comparable to the inability
to reproduce of heterosexual couples advanced in age, who were also legitimately denied access to PMA under the law. The Court also refused to
assign a constitutional value to the desire to have children with one's partner, rejecting the referring court's claims that being unable to do
so was a threat to a person's mental and physical health. It distinguished from the cases allowing recognition of adoptions by homosexual
individuals of the minor biological children of their partners, and those allowing recognition of parenthood by same-sex couples achieved by
PMA procedures obtained abroad. Those scenarios, the Court held, deal with existing children in need of families, and the object is to provide
for that need making the best use of pre-existing bonds of affection. In the present case, where the object would be to provide a couple with
a child that does not yet exist, thus fulfilling a wish to become parents, the Court held that the legislator was not unreasonable or unjustified
in its concern to guarantee the conditions it considered to be not only suitable, but ideal for the child. The legislator's decision that
these ideal conditions were based on the natural family (two parents, of different sexes, both living and of potentially fertile age)
could also not be considered arbitrary or unreasonable, since this determination had nothing to do with the subjective fitness (of,
say, a single woman, heterosexual couple advanced in age, or homosexual couple) to perform the duties of raising a child. Moreover,
the Court pointed out, the Constitutional provisions on parenthood and family were clearly based on the vision of family shared by the
2004 legislator. Public opinion, the Court added, could very well shift on this matter, and was something the legislator was best positioned
to grasp. The Court also rejected allegations of class discrimination, holding that the fact that wealthy citizens can avoid a prohibition
by traveling abroad does not speak to the constitutionality of the prohibition.
