The right to preimplantation genetic diagnosis: biological citizenship and the challenge to the Italian law on medically assisted reproduction

Abstract

In 2004, the Italian Parliament passed a restrictive law on medically assisted reproduction 40/2004 outlawing the use of preimplantation genetic diagnosis (PGD) in Italian fertility clinics. The adoption of the Law triggered a massive wave of lawsuits filed by Italian citizens and medical associations against the Law, leading to the invalidation by the Constitutional Court of the impugned provisions as violating constitutional rights and to the legitimization of PGD. Drawing on the concept of biological citizenship and the critical approach to legal rights, this article explores the extent to which rights litigation can ensure the recognition of biological citizens’ values and interests in using new biomedical technologies. It argues that countries’ dominant institutionalized ways of constitutional interpretation and reasoning play a key role in how courts resolve rights disputes. This limits the scope of rights, and the values that underpin the claimed rights, based upon which citizens can claim access to new biomedical technologies. In Italy, due to these dominant institutionalized ways of constitutional interpretation and reasoning, the Italian Constitutional Court recognized that only the right to health of the woman, and not the rights to reproductive self-determination and to respect for private and family life, legitimized access to PGD. As a result, it failed to recognize citizens’ relational values of parental responsibility and care that underpinned these rights. As such, biological citizenship in the form of rights claiming, therefore, provides limited potential for biological citizens to have their values and interests in using new biomedical technologies recognized by the state.