10.6092/issn.2038-3460/17092
The Italian law regulating ART approved in 2004 is at the centre of this conversation, which departs from the book ‘Fecondazione e(s)terologa’ (2012) written by two prominent Italian professionals in the field. The three contributors of this conversation analyse different profiles of the law: the contradictions between Catholic moral order and a scientific rationality which is not fully aware of its heteronormativity (Parolin); the macropolitics of information along Italian history and the moral economy surrounding fertilization techniques (Metzler); Law 40 in the context of the EU landscape of reproductive rights (Schuster). All the three voices of the conversation emphasize the paradoxes of ART in Italy and the perverse effects of the prohibition of heterologous fertilization, namely the medical exodus of Italian couples outside of the Italian territory.
application/pdf
2038-3460
17092
1
en
Alexander Schuster
https://creativecommons.org/licenses/by-nc-sa/2.5/
Tecnoscienza – Italian Journal of Science & Technology Studies
reproductive rights
(Not) Making “Hexternologous”. Fertilization The Italian ART Law and its paradoxes
Text.Serial.Journal
https://tecnoscienza.unibo.it/
4
Conversations
2013-07-12
2023-06-01
2013-07-12
2023-07-17
133-144
TS
Alexander Schuster
2013/07/12
10.6092/issn.2038-3460/17092
133
University of Trento
2038-3460
1
reproductive rights
en
144
(Not) Making “Hexternologous”. Fertilization The Italian ART Law and its paradoxes
https://tecnoscienza.unibo.it/article/download/17092/16029
4
                                                                             Conversation

(Not) Making “Hexternologous”
Fertilization
The Italian ART Law and its paradoxes
	
  
Laura Lucia Parolin                        Ingrid Metzler         Alexander Schuster
       University of Milan Bicocca           Harvard University      University of Trento
	
  
       Abstract The Italian law regulating ART approved in 2004 is at the centre of
       this conversation, which departs from the book ‘Fecondazione e(s)terologa’
       (2012) written by two prominent Italian professionals in the field. The three
       contributors of this conversation analyse different profiles of the law: the con-
       tradictions between Catholic moral order and a scientific rationality which is
       not fully aware of its heteronormativity (Parolin); the macropolitics of infor-
       mation along Italian history and the moral economy surrounding fertilization
       techniques (Metzler); Law 40 in the context of the EU landscape of reproduc-
       tive rights (Schuster). All the three voices of the conversation emphasize the
       paradoxes of ART in Italy and the perverse effects of the prohibition of heter-
       ologous fertilization, namely the medical exodus of Italian couples outside of
       the Italian territory.

       Keywords: heterologous fertilization, Law 40, moral order, scientific rational-
       ity, reproductive rights.

       Corresponding author: Laura Lucia Parolin, Dipartimento di Sociologia e
       Ricerca Sociale, Via Bicocca degli Arcimboldi 8, 20126 Milano, Italy – Email:
       laura.lucia.parolin@unimib.it.



1. Parenthood: Between Catholic Hegemony and
Heteroscientific Rationality

Laura Lucia Parolin
    The book by Carlo Flamigni and Andrea Borini Fecondazione
e(s)terologa aims to be a useful instrument for Italian citizens who need
accurate information on assisted reproductive technologies (hereafter
ART). According to the authors, both well known professionals in the bi-
omedical field, Italy suffers from an informative deficit on these issues,
mainly because of the strong influence of the Vatican hierarchies on the

	
  
TECNOSCIENZA
Italian Journal of Science & Technology Studies
4(1) pp. 133-144 – ISSN 2038-3460
www.tecnoscienza.net                                   2013
134                                                           Tecnoscienza - 4 (1)

social and juridical environment. The authors claim that: “The ordinary
Italian is not particularly religious, even attentive to the rules of Catholic
morality. However, especially when they have to take position on ethical
issues, [ordinary Italians] still tend to be inspired by bishops and priests,
who seem to maintain a particular prestige even in a historical moment in
which the religion they represent is troubled by a serious crisis of credi-
bility” (Flamigni and Borini 2012, 9).
    The approval of Law 40 in 2004, which regulates the access to ART,
has to be located in this social and political context. The Authors argue
that the law regulates ART according to the ethical logic of the Catholic
Church rather than to the biomedical rationality and the scientific debate.
In the book they show how, focusing on avoiding embryo surplus, the law
ends up being harmful from the point of view of the biomedical rationali-
ty – which is understood as the efficacy of treatment for the birth of a
healthy baby and the prevention of risks related to pregnancy.
    Given such a regulatory framework, the authors are not surprised that
many Italian couples choose to go abroad to undergo ART. Presenting
data from the Observatory on Reproductive Tourism – a private organiza-
tion led by Borini, created in 2005 to monitor Italians’ access to assisted
reproductive centres abroad – the authors describe the flow to countries
with more permissive regulations on ART. In particular, they reveal an
exodus of Italian citizens to countries where it is possible to use donor
gametes and embryos. After the introduction of Law 40 this amount of
couples is tripled. The authors argue that, surprisingly, this flow does not
decrease despite recent rulings revoked some of the law major limitations
(see also Hanafin and Schuster in this issue). According to the authors,
this depends on the strong interest in maintaining a strategic ambiguity
on ART-related issues, defined as “ethically sensitive” to uphold the he-
gemony of the Catholic Church’s voice. At the same time, they point out
that providing specific and customized advice to Italian citizens who in-
tend to use ART abroad might be considered an illegal activity, according
to a literal interpretation of Law 40. In order to address this lack of in-
formation and ambiguity, the volume aims to provide a broad range of in-
formation on ART and related debates. In this respect, the core argument
of the book is summarized in its title: the neologism ‘e(s)terologa’, mean-
ing the connection between (the prohibition of) gamete donation and the
need to go abroad.
    The central part of the book deals with the analysis of ethical and ju-
ridical issues related to gamete and embryo donation. Although the au-
thors seem to associate the desire for kinship with the will (taken for
granted and socially prescribed) to transfer genes, they introduce the no-
tion of social kinship (i.e. kinship based on desire and responsibility ra-
ther than blood ties) to challenge (in some extreme cases) the overlap of
genetic bounds and kinship. As they underline: “What happens to most
of these couples, which allows them to make choices precluded to many
other people, is discovering that there is a parenthood that has nothing to
Parolin, Metzler, and Schuster                                                                                                                                                                                                     135
do with genetics and the transfer of their own chromosomes to another
individual; a parenthood based on responsibility, on the promise to care
about and to love a child who is not born yet. A parenthood of great
moral value, which is still unacceptable and even perverse for many peo-
ple” (Flamigni and Borini 2012, 29-30). This kind of kinship is not yet so-
cially legitimate and still needs full social acceptance. The discussion on
the secrecy of donation is still ongoing among people involved and many
couples who went for gamete donation choose to not reveal it to the child
and their relatives and friends. However, the debate on children’s right to
know their genetic identity, which varies from country to country on the
basis of different national laws on donors’ anonymity, could be widely re-
configured adopting a perspective that privileges social kinship.
    The book, therefore, stresses two main interrelated features about
ART in Italy. On the one hand, the restrictive national legislation is
bound by the ethical issues imposed by the Catholic Church. Law 40 is
driven by an ethical logic that limits ART, reducing its effectiveness (in
terms of children born) and security (for the mother), on the basis of a
traditional notion of family, which reduces parenthood to genetic ties. On
the other hand, the moral and ethical values embedded in Italian politics,
institutions and health care professionals inhibit the access to technosci-
entific information, which citizens would need in order to perceive them-
selves as subjects deprived of their reproductive rights. The Authors
claim that this phenomenon is particularly evident with reference to the
lack of accurate information on recent repeals of the law, which balance
the restrictions and allow Italian centres to use ART more effectively. In
fact, They argue that the “proven Catholic faith” of people in charge of
the Ministry of health has deterred centres for assisted reproduction from
making communication campaigns on the opportunities that have opened
up thanks to the intervention of the Constitutional Court. This ambiguity
in the public debate marks the bounds of biomedical expertise and the
(alleged) rationality of the scientific discourse.
    Law 40 has been sharply criticized as technically inappropriate and
inconsistent with the Italian legal framework (for example, the ban of
pre-implantation diagnosis contrasts with the regulation on abortion).
Surprisingly, however, the authors root their criticism on arguments re-
lated to social and human dimensions. Their experience with prospective
parents leads them to challenge the alleged natural basis of parenthood as
desire to transmit genes Moreover, using the term “citizens” to refer to
patients the authors emphasize the right to access ART. However, it
seems that the rhetorical device that builds ART patients as multiple and
collective bodies – the “hermaphrodite couple” (Van der Ploeg 1995)1 –
limits the range of those who have the right to access. Authors have in
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1
 “Hermaphrodite couple” is a concept proposed by Irma Van der Ploeg (1995)
to refer to a figure of discourse that presents the heterosexual couple as a body-
subject of assisted procreation.
136                                                           Tecnoscienza - 4 (1)

mind exclusively heterosexual couples – which are probably their ideal
readers. Therefore, even though this might be expected from the critique
of parenthood based on genetic ties, their arguments do not challenge the
question of heteronormativity in ART. This narrows the authors’ point of
view and weakens the powerful effects of interpreting parenthood on the
basis of desire, rather than genetic ties. The latter, for instance, normaliz-
es the compulsory medicalization of women who have sterile partners,
considering this a more “ethical” choice than using donor gametes. Simi-
larly, the stigmatization and social exclusion of ‘other’ bodies (Parolin
and Perrotta 2012), not having reproductive citizenship according to Law
40, are just taken for granted along the volume as part of the medical and
organizational practices of the health care system.
     The authors deal with the scientific debate on homosexual
parenthood, emphasizing the social and situated character of the scien-
tific discourse. Quoting Macdougall and colleagues (2007) they seem to
recognize the complex nature of parenthood when donor gametes are
used, which is constructed through technical as well as narrative elements
for accountability. Moreover, they acknowledge the ‘scientific’ arguments
illustrating that there are no substantive differences in the psycho-
affective development of children raised by homosexual parents. Howev-
er, they root their biomedical scepticism about the inclusion of homosex-
ual couples in ART referring to the fear of “social reactions to these
events and the inevitable repercussions on the child of people hostility
and critique” (Flamigni and Borini 2012, 65). Authors are not unaware of
some of the links among biomedicine, rhetorical devices and social phe-
nomena in ART. However, the heterogeneous elements that shape the
range of individuals’ and couples’ reproductive choices (whether assisted
or not) are only partially addressed. Although the authors recognize the
social elements embedded in reproductive choices, they use naive catego-
ries to explain the heterogeneous aspects of these choices. For instance,
discussing the tendency to postpone parenthood they introduce bizarre
analytical categories, such as “the age shown in the mirror”, which is sup-
posed to affect the delay in parental choice.
     To sum up, the first part of the book is focused on the consequences
of the ethical hegemony of Catholic values on issues related with ART.
Particularly, the limitations introduced by the law are discussed, high-
lighting their impact on medical practices and access to techniques.
Throughout the book the authors aim at illustrating the contrast between
the law and the biomedical and scientific rationality. However, it emerges
from the book that the call for biomedical and scientific rationality is
deeply entangled with political and social aspects, perhaps even more
than the authors seem to be aware of.


                                    ***
Parolin, Metzler, and Schuster                                           137


2. The Politics of Information in a Nation State Wrestling
with its Moral Order

Ingrid Metzler

    Carlo Flamigni and Andrea Borini’s book begins with a well-chosen
and deceptively succinct title. Fecondazione e(s)terologa combines the
term eterologa (heterologous) with the term estero (abroad), labelling
something that does not quite belong because it is not “homologous,”.
Fusing two different yet related types of alienations into a single neolo-
gism, the wonderfully suggestive title indicates that a steady number of
ART are not only linguistically marked as far-fetched in Italy (e.g., draw-
ing on the reproductive powers of other bodies is not referred to as a soli-
tary act of “gamete donation” but as the disruptive act of bringing some-
thing into a space where it should not be), but a portion of them are also
exiled from Italian territory. Each year, a number of Italians travel abroad
for fertility help, to neighboring Switzerland or Austria, to geographically
more distant and scientifically more prestigious spaces, such as Spain or
Belgium, or to an unspecified “East” that the authors leave strangely
black-boxed in their book.
    Flamigni and Borini do not seem to be surprised that this phenome-
non has taken shape. An “exile” of patients – or, using the term that ap-
pears throughout the book, of “citizens” – seemed to be an appropriate
and rational choice for patients, once the Italian Parliament passed the
(in)famous Law 40 in February 2004, ‘expatriating’ a number of tech-
niques and practices, and imposing tight restrictions on all practices still
legally available. Yet, the authors seem to be puzzled, intrigued, and at
times also worried that the flow of patients has not slowed, once Italian
courts in general and the Constitutional Court in particular began to
“free the hands” of Italian bio-medical professionals, relaxing the tight
norms that were also never “as severe as they seemed” (Flamigni and Bo-
rini 2012, 145). The authors note that some parts of the law were formu-
lated sufficiently ambiguously to allow scientists to work around them.
    Flamigni and Borini make no attempt in this book to fathom why so
many Italians continue to travel abroad for fertility services. Instead, they
seek to endow Italian citizens with the kind of information that will help
them to make an informed choice, somehow assuming that they would
make different choices if they only knew better. In roughly 160 pages,
Flamigni and Borini take their readers, whom they envision as patients
and certainly not as social scientists, through the kind of information they
deem necessary for Italian citizens to make informed decisions. In doing
so, they clearly show that providing information is not an easy job. For in-
stance, they note that the higher IVF (In Vitro Fertilization) success rates
that U.S. fertility centres pride themselves on come with the hidden cost
138                                                           Tecnoscienza - 4 (1)

of “excessive hormone stimulations” and “embryo reductions,” both of
which are “considered very critically in Europe” (Flamigni and Borini
2012, 30, author’s translation) and which are nonetheless silenced in these
figures. At other times, though, they reveal those difficulties in a less vol-
untary or deliberate way, leaving informed readers amazed by the sheer
number of things that the authors take for granted, and what they deem
“evident” and not in need of explanation or justification.
    The authors are two Italian bio-medical professionals. In light of this,
it might not be surprising that they privilege their bio-medical perspec-
tive, taking for granted that readers will accept the supremacy of their
knowledge over, say, the knowledge of other patients who share their ex-
perience in an internet forum. So, instead of discussing the “micro-
politics of information,” and unpacking what they leave out, I prefer to
discuss some of the macro-politics of information, embedding this book
in the moral economy of a debate that it both describes and engages in.
          Let me begin by going back a bit in time. The book itself invites
such a step. It is the fourth issue in a series sponsored by the AIED, the
Italian Association for Demographic Education, whose honorary presi-
dent is the coauthor Carlo Flamigni. Today, the association’s name
sounds anachronistic. Yet, back in 1953, AIED began to assemble a range
of moral pioneers who provided information on sexuality, reproduction,
and contraceptive devices. At that time, disseminating such information
was criminalized by one of the pro-natalist provisions enacted during
Fascism to ensure that the Italian population would multiply. With the
end of the fascist regime, the demographic dream of a rapidly growing
Italian “stock” quickly devolved into a nightmare in the face of a postwar
reality, in which food was scarce for those already born. Nonetheless,
many of the provisions enshrined in law during the fascist period still re-
mained in force.
    One of the reasons for this was something of a “tacit contract to si-
lence” between the Roman Catholic Church and the then-emerging new
elites. In this tacit contract, contraception, abortion, and indeed all mat-
ters that involved human sexuality and reproduction were excluded from
the realm of issues that the then-young republic would address. In this
context, disseminating information on these forbidden matters was tan-
tamount to an act of civic disobedience that empowered individual citi-
zens and the entire nation at once, disrupting the tacit contract to silence
and shoving ignored issues onto the political agenda from below.
Throughout the 1960s and 1970s, matters of reproduction not only be-
came matters that started to be spoken about, but they also became sub-
jects of a series of legal innovations, the last of which was the abortion law
of 1978.
    Today, sixty years after the establishment of the AIED, the moral
economy that Flamigni and Borini seek to enlighten is slightly different.
At issue is no longer the dissemination of suppressed knowledge on how
to limit reproduction; today, the more immediate issue is providing in-
Parolin, Metzler, and Schuster                                            139
formation that could give ailing reproductive bodies a helping hand. Nor
is it a matter of providing information where none is available. Today, it is
not a lack of information, but – perhaps – an excess of information,
which presents patients and consumers with the difficulty of not knowing
whom to trust, in a situation in which political authorities actively “mud-
dy the waters” (Flamigni and Borini 2012, 30). It is not ignorance through
silence that the authors seek to challenge but “confusion” through an ex-
cess of public claims (Flamigni and Borini 2012, 12).
     Shifting back in time once more might help us understand this con-
temporary confusion better. The story that moral pioneers such as the
AIED kicked off in the 1950s culminated in a series of legal innovations,
the last of which were “norms for the social protection of motherhood
and on the voluntary interruption of pregnancy,” namely, the Italian
Abortion Act of 1978. This law had been many years in the making. The
process involved nasty controversies between those who drew on the Ital-
ian Republic’s commitment to protect the “inviolable human rights of
man,” as enshrined in Article 2 of the Italian Constitution, to argue that
embryos and foetuses belong to the moral community of human subjects,
that the right to life is the most fundamental of all human rights, and that
there could be no choice other than to continue to outlaw abortions. The-
se arguments were challenged by those who argued that unborn human
life could not be meaningfully endowed with personhood. These were
parts of women’s bodies, and any civilized nation must realize that deci-
sions about what to do with their bodies belong to the range of civil rights
that an enlightened nation bestows on its (female) citizens.
     With the first position articulated in particular by members of the
Democrazia Cristiana (the catholic party which governed Italy for almost
half a century) and the second one tied to members of the Radical Party,
the moral economy of the abortion debates in the 1970s was very similar
to the structure of contemporary disputes on the techniques of assisted
reproduction. Today, there are those who lend their voice to defend the
rights of those “who have no voice” – that is, embryos – with the differ-
ence that, in the meantime, the list of the rights of embryos has grown
and now also includes a “right to identity”. On the other side of the de-
bate are those who assert that the rights of embryos are not equal to the
civil rights of full-fledged adult human beings, and who are now fighting
not just for women’s rights to refuse an unwanted pregnancy but also for
women’s rights to access to technology to have a (healthy) child.
     And yet, historically, there is a striking difference. At the time of the
abortion debate, a third collective of actors and arguments bridged these
two positions. These actors – many of them members of the Communist
and the Socialist Party – framed the abortion debate not as an ethical de-
bate, nor as a debate on civil rights, but as a social issue. They argued that
the question was not whether abortions were good or bad, nor whether
women should be allowed to abort or not (they would abort, anyway); in-
stead, the question that politics – that is, parliament – had to address was
140                                                           Tecnoscienza - 4 (1)

how and where Italian women should interrupt pregnancies: in clinics
abroad; or in clandestine spaces in Italy where the economically well-off
risked their health and at times their lives; or in openly regulated spaces
in Italy where state authorities would ensure that if women, any women,
chose to abort, they would not have to pay with their health, their bodies,
or their lives. I do not see such actors today who attempt to bridge the
two positions on assisted reproduction.
    Back in the middle of the 1990s, when these debates begun in earnest,
those blessed with Catholic certainties were opposed by women such as
Marida Bolognesi who admitted that these matters were difficult, that no
answers were readily available, and that a different kind of politics, a poli-
tics that is ready to listen to the reasons of others, was needed. Yet, over
the past two decades, such humble positions have disappeared. Today,
Catholic truths, camouflaged as scientific ones, are challenged by techno-
utopians (if I dare to simplify it that much). They presume that to undo
political and religious interferences into bio-medicine is the major prob-
lem. Today, both sides pretend to speak from nowhere. A ‘dialogue be-
tween deaf’ has emerged, that might well be the reason for all the “confu-
sion” that the two authors seek to address.
    In this context, providing the kind of information that the two authors
assemble in their book might be empowering and enlightening. But it
would be even more enlightening for individual patients and the entire
nation, if Flamigni and Borini did not take for granted that others – pa-
tients traveling abroad or politicians making irrational choices – behave in
irrational ways because they ignore the facts. Those others might well be-
have differently because they are motivated by other facts, concerns and
wishes or phenomena that we – and not they – ignore. Making such an ef-
fort to understand the others better, or retreating from the assumption
that science (or religion) contains all the answers, might be an act of mor-
al pioneering of different kind, one that revitalizes the spirit of the AIED
of the second half of the 20th century yet making it fit the needs of a na-
tion wrestling with its moral and technological order as it confronts the
21st century.


                                    ***

3. The Challenges of Pluralism in Reproductive Rights

Alexander Schuster

   Hardly do any other fellow Europeans suffer legal constraints in seek-
ing medical assistance to fulfil their desire of parenthood as Italians do.
The law that for the very first time regulated assisted reproductive tech-
niques in Italy was passed by a parliament that held strong ideological
Parolin, Metzler, and Schuster                                            141
views (Law 19 February 2004, no. 40, Norms related to medically assisted
procreation). It certainly filled a legislative vacuum, yet the matter was not
at all previously unregulated. There were and still are professional rules of
conduct. Their legal classification in the Italian context is debated, but
they are undisputedly considered at least effective parameters for as-
sessing medical negligence and conduct overall. The Ministry of Health
had issued some administrative circulars as well as orders on specific
points, such as importation and exportation of gametes (see also Hanafin
in this issue).
    The outcome of this law is still shaping the reproductive landscape of
Italy. Cross-border medical assistance has since boomed. As the book
underlines, the Italian Constitutional Court set aside most of the contro-
versial provisions of the parliamentary act in its 2009 judgment. A key as-
pect that was found unconstitutional was the limitation on the maximum
number of three for embryos that could be produced. It encompassed the
obligation to transfer all embryos, notwithstanding the will of the woman,
who, however, clearly never became victim of coercive measures. The law
did indeed leave no margin of medical appreciation as to how many oo-
cytes it was fit to fertilize given the age, the health history and the condi-
tions of the couple, nor would it grant the possibility to freeze supernu-
merary embryos. Although some limitations have been neutralized by the
judiciary, couples are not aware of the current situation and seek abroad
what in some cases is or has become available again.
    There are limitations that still obtain today. Section 4, paragraph 3 of
the law prohibits heterologous insemination. The book went to print be-
fore the Grand Chamber of the European Court of Human Rights
reached a different conclusion than the first section on 1st April 2010.
The 17 judges overturned “S.H. et al. v. Austria” (application no.
57813/00) and found against the applicant couples that Austria acted
within its margin of appreciation in permitting sperm donation in vivo,
yet not in vitro. Following this, the Italian Constitutional Court remanded
on 22 May 2012 the issue on the constitutionality of the legal prohibition
entrenched in the law of 2004 to the referring courts. They were asked for
a new evaluation of their doubts on the legitimacy. In March and April
2013 three new preliminary rulings from the courts of Milan, Catania and
Florence were lodged and will be decided in 2014 (see Hanafin in this is-
sue). Along with the prohibition on heterologous insemination two major
obstacles still remain in force. The first one is surrogacy, the second is the
subjective limitation. Only opposite-gender couples, either married or
cohabitating, who are considered either infertile or sterile may revert to
ART. As the book points out, the two terms used by the law bear a differ-
ent meaning in the medical jargon. Infertility allows virtually any couple
to access these techniques, for it is broadly construed as including those
situations where, despite sexual intercourse, no pregnancy is reached
within 18-24 months. It should also include de facto infertility, i.e. when
142                                                         Tecnoscienza - 4 (1)

couples do not engage in sexual intercourse due to diseases such as HIV
or genetic diseases that may be passed on to the child.
    There are of course other prohibitions, such as embryo donation or
the exclusion of scientific research on embryos. For a long time preim-
plantation genetic diagnosis (PGD) was excluded from the guidelines
that are issued approximately every three years. While the first edition al-
lowed for examinations solely for the purpose of observation, the 2008
guidelines removed that part and allowed PGD for avoiding sexually
transmissible diseases on the side of the man. Nevertheless, embryo
screening remained a contentious issue for other diseases, especially he-
reditary ones. Some judges ruled in favour of couples affected by this sit-
uation (see Hanafin in this issue). The book could not cover the decision
by which the Strasbourg court declared the prohibition of PGD in viola-
tion of article 8 of the European Convention on Human Rights, which
protects the right to respect for family and private life (judgment Costa
and Pavan v. Italy, application no 54270/10, 28 August 2012). The provi-
sion has been considered inconsistent with Italian law in “prohibiting the
implantation of only those embryos which were healthy, but authorising
the abortion of foetuses which showed symptoms of the disease”.
    This update on the Italian legal situation shows that significant parts
of the law have been demolished by either Italian or European judges.
Yet severe obstacles remain and the book retains all its usefulness. It will
not be easy for many fertility clinics to quickly regain excellence in PGD
and the significant high number of clinics on the national territory – as
pointed out by the authors – impacts negatively on the average success
rate of treatments. But certainly what forces thousands of Italians every
year to expatriate is the limit to heterologous insemination and to the per-
sons that may access ART. There was somehow a way-out. The regulation
on importation of gametes was not renewed in 2004. The couple is not
subject to any fine if insemination if carried out by them directly. In vivo
fertilization becomes de facto possible. The possibility to purchase online
from sperm banks self-insemination kits and have them shipped to Italy
relied on a loophole and could be a more convenient in a cost-benefit
analysis option if compared with travelling abroad. Only lately a new gov-
ernment order issued in relation to Directive 2004/23/EC (ministerial de-
cree of 10 October 2012) toughened the rules for importation and expor-
tation of embryos and gametes, placing them within the tight boundaries
of Law no 40/2004 and its prohibition of heterologous insemination.
    Whereas the focus of the book is on the medical data and the possibil-
ities available abroad, there are other aspects that could be mentioned in
relation to “cross-border reproductive tourism”. The authors could have
focused on how a couple may take advantage of screenings and medical
counselling in Italy so to reduce the services needed abroad. It would
have been interesting to learn more on how a couple can bring with them
reproductive cells to a foreign clinic. Cryopreservation of gametes is not
forbidden in Italy and actually even foreseen as a medical protocol if
Parolin, Metzler, and Schuster                                             143
therapies may endanger the reproductive health of the patient. Besides
well-known cases such as tumours, one may now think even of preserva-
tion of ovarian tissue or egg-cells of a transsexual person wishing to have
her gonads removed for gender-reassignment surgery. The person should
be entitled to withdraw the gametes and carry them abroad. The recent
change in the Italian law on importation and exportation does not affect
the intra-EU dimension and overall does not apply when the person is the
owner of the gametes and these are intended for personal use. Yet the
question arises: could Italy ban the importation of reproductive cells,
which could be used for in vivo fertilization without any medical assis-
tance? Do economic freedoms play a role?
    The authors highlight the legal constraints that explain expatriation
and the opportunities abroad. The law has, however, more to say than
that. Among the matters that deserve further academic exploration we
should mention the principle of extraterritoriality of legal prohibition,
which can be found for instance in relation to surrogacy in some Australi-
an legislation; the whole array of problems deriving from the non-
recognition by the country of origin of children born abroad (for instance
because surrogacy is against national public policy or because what is at
stake is same-gender parenthood), which should ideally be part of the in-
formation Italian citizens are given when travelling abroad for reproduc-
tive purposes. Both legal and psychological counselling, along with medi-
cal counselling, should not be underestimated either. Stress increases
dramatically when a desire for children faces obstacles, especially if they
are not just legal, but biological as well. It is unfortunately not unusual
that psychological tension has a disruptive impact on the couple’s life and
often even existence. Couples should also become aware that there has
been at least a case in Italy where the child allegedly adopted or commis-
sioned with surrogacy in Russia by an Italian couple has been taken away
and given up to adoption. The case is currently pending in Strasbourg.
    The title of the book by Carlo Flamigni and Andrea Borini is a play on
words and could somehow transferred into English with Hexternologous
fertilization, a mix of “heterologous” in relation to gametes and “exter-
nal” in relation to the territory or jurisdiction. On a closing note, we can
say that “he(x)ter(n)ologous” fertilization will lead to increasing case law at
the European level. Europe is called upon to strike a fair balance between
national pluralism in matters of reproductive rights and a common mar-
ket and space of liberty and freedom.
    Are services related to medically assisted reproduction economic ser-
vices? In Society for the Protection of Unborn Children Ireland Ltd. v.
Grogan, Case C-159/90, [1991] ECR I-4685, the Court of Justice of the
EU dealt with domestic proceedings against Irish students associations
which distributed information about the identity and location of clinics
abroad where voluntary termination of pregnancy was lawfully carried
out, and held that medical termination of pregnancy, performed in ac-
cordance with the law of the State in which it is carried out, constitutes a
144                                                               Tecnoscienza - 4 (1)

service within the meaning of Article 60 of the Treaty (now Article 57
Treaty on the Functioning of the European Union).
    How far can rules on goods extend to reproductive cells and tissues?
What will be the impact of directive 2011/24/EU on the application of
patients’ rights in cross-border healthcare when its transposition by
Member States is completed by 25 October 2013? Is information on what
is available abroad protected by freedom of expression? This was the po-
sition of the Strasbourg Court in relation to abortion in Open Door v. Ire-
land (application no. 14234/88; 14235/88, 29 October 1992). Whereas
counselling pregnant women in Ireland to travel abroad to obtain an
abortion or to obtain further advice on abortion within a foreign jurisdic-
tion was found unlawful by Irish courts, the European Court of Human
Rights held that the restraint imposed on the applicants from receiving or
imparting information was disproportionate to the aims pursued and was
in breach of the Article 10 of the European Convention, which protects
freedom of expression.
    Can foreign economic actors such as EU clinics or US agencies adver-
tise in Italy heterologous insemination and promote surrogacy in Califor-
nia by meeting interested parties on the Italian territory? Can an Italian
lawyer assist a lesbian or gay couple willing to become parents according
to the UK legislation? The clash between the State’s willingness to protect
public morals and everyone’s right to build a family will soon write new
chapters in both the Luxembourg and Strasbourg case-law, for it will re-
main a legal and political minefield for a very long time.	
  


References
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Macdougall, K., Becker, G., Scheib, J. and Nachtigall, R. (2007) Strategies for Dis-
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Parolin, L.L. and Perrotta, M., (2012) On the Fringes of Parenthood: Othering and
   Otherness in Italian Assisted Kinship , in “AG About Gender”, 1 (2), pp. 100-
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