20 Years Since the Enactment of Italian Law No. 40/2004 on Medically Assisted Procreation: How It Has Changed and How It Could Change

Gianluca Montanari Vergallo, Susanna Marinelli, Gabriele Napoletano, Lina De Paola, Michele Treglia, Simona Zaami () and Paola Frati
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Gianluca Montanari Vergallo: Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, 00161 Rome, Italy
Susanna Marinelli: School of Law, Polytechnic University of Marche, 60121 Ancona, Italy
Gabriele Napoletano: Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, 00161 Rome, Italy
Lina De Paola: Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, 00161 Rome, Italy
Michele Treglia: Department of Biomedicine and Prevention, Section of Legal Medicine, Social Safety and Forensic Toxicology, University of Rome Tor Vergata, 00133 Rome, Italy
Simona Zaami: Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, 00161 Rome, Italy
Paola Frati: Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, 00161 Rome, Italy

IJERPH, 2025, vol. 22, issue 2, 1-16

Abstract: The article examines the changes to Italian legislation on assisted reproductive technology (ART) resulting from rulings by Italian courts, highlighting unresolved ethical–legal issues and potential future regulatory approaches consistent with these decisions. Additionally, it addresses the amendment defining surrogacy as “universal crime”, effective as of 18 November 2024. Through an analysis of decisions by the Constitutional Court and the Court of Cassation, it emerges that Law No. 40/2004 has been deemed unconstitutional in relation to the following: heterologous fertilization, the number of embryos that can be created, cryopreservation, the implantation of only healthy embryos, and access to ART for fertile couples. Controversial aspects include the fate of surplus embryos, access to ART for single individuals, and the recognition of parenthood for same-sex couples. The “universal crime” classification of surrogacy raises the possibility of legal consequences for individuals engaging in surrogacy abroad, even where it is lawful. Courts are unlikely to legislate on the allocation of surplus embryos without parliamentary intervention or to allow single individuals access to ART, given the perceived inconsistency with the child’s best interests. However, case-by-case evaluations are essential for recognizing non-biological or non-genetic parents in same-sex relationships and for assessing the effectiveness of the universal crime approach in safeguarding rights and public health.

Keywords: medically assisted procreation; supernumerary embryos; cryopreservation; embryo protection; same-sex parenting; surrogacy; universal crime (search for similar items in EconPapers)
JEL-codes: I I1 I3 Q Q5 (search for similar items in EconPapers)
Date: 2025
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