10.6092/issn.2038-3460/17085
In 2004, the introduction of a restrictive law on assisted reproduction in Italy sees the privileging of a conservative model of family relations and a misogynist view of society by the political elite. This backlash politics excludes many individuals from full reproductive citizenship. In this regard what the Italian case allows us to see is the operation of a biopolitics which both governs and excludes. The 2004 Act excludes gay couples, single people and people who are carriers of genetically inherited conditions from access to assisted reproductive technologies. Such an exclusionary biopolitics has provoked a counter-politics of resistance against the legislation. This article examines the manner in which individuals have contested the legislation’s prohibitions, and, in so doing, looks at how this might constitute an example of what Nikolas Rose has termed an ethopolitics. The concept of ethopolitics allows us to visualize the potential of an active counter-politics of resistance for restoring reproductive citizenship to those deprived of it by legislative interventions of this nature.
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Patrick Hanafin
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Tecnoscienza – Italian Journal of Science & Technology Studies
bioethics
Law, Biopolitics and Reproductive Citizenship: The Case of Assisted Reproduction in Italy
Text.Serial.Journal
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Essays
2013-07-12
2023-05-30
2013-07-12
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TS
Patrick Hanafin
2013/07/12
10.6092/issn.2038-3460/17085
45
Birkbeck University of London
2038-3460
1
bioethics
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Law, Biopolitics and Reproductive Citizenship: The Case of Assisted Reproduction in Italy
https://tecnoscienza.unibo.it/article/download/17085/16005
4
                                                                                Essay
Law, Biopolitics and Reproductive
Citizenship
The Case of Assisted Reproduction in Italy
!
Patrick Hanafin
Birkbeck University of London
!
     Abstract In 2004, the introduction of a restrictive law on assisted repro-
     duction in Italy sees the privileging of a conservative model of family rela-
     tions and a misogynist view of society by the political elite. This backlash
     politics excludes many individuals from full reproductive citizenship. In this
     regard what the Italian case allows us to see is the operation of a biopoli-
     tics which both governs and excludes. The 2004 Act excludes gay couples,
     single people and people who are carriers of genetically inherited condi-
     tions from access to assisted reproductive technologies. Such an exclusion-
     ary biopolitics has provoked a counter-politics of resistance against the leg-
     islation. This article examines the manner in which individuals have con-
     tested the legislation’s prohibitions, and, in so doing, looks at how this
     might constitute an example of what Nikolas Rose has termed an ethopoli-
     tics. The concept of ethopolitics allows us to visualize the potential of an ac-
     tive counter-politics of resistance for restoring reproductive citizenship to
     those deprived of it by legislative interventions of this nature.

     Keywords: assisted reproduction; biopolitics; reproductive citizenship; re-
     productive rights; bioethics.

     Corresponding author: Patrick Hanafin, School of Law, Malet Street,
     London WC1E 7HX, United Kingdom – Email: p.hanafin@bbk.ac.uk.



1. Introduction

     In this article I examine Italy’s 2004 Act on Assisted Reproduction as
an example of the operation of a biopolitics which both governs and ex-
cludes. The exclusionary consequence of biopolitics has been well de-
fined by Didier Fassin as “about inequalities in life which we could call
bio-inequalities” (Fassin 2009, 49). Such a notion of bio-inequality in-
cludes a “withholding [of] recognition from the other” (Fassin 2009, 57).
It is precisely this withholding of recognition from individuals affected by

!
TECNOSCIENZA
Italian Journal of Science & Technology Studies
4(1) pp. 45-67 – ISSN 2038-3460
www.tecnoscienza.net                              2013
46                                                               Tecnoscienza - 4 (1)

the prohibitions created by the Act (couples who are carriers of genetic
conditions, gay couples, and single people) that has led to a counter-
politics of resistance against the legislation. The legislation, Legge 19
Febbraio 2004, n. 40, ‘Norme in materia di procreazione medicalmente as-
sistita’, narrowed the scope of reproductive citizenship in that it accorded
symbolic legal recognition to the embryo and prohibited embryo re-
search, embryo freezing, and donor insemination, and prevented gay
couples, single women and those couples suffering from a genetically in-
herited condition from gaining access to assisted reproduction services
(for a full account see Hanafin 2007, 49-80). The Act while purporting to
regulate the assisted reproductive sector is in effect a means of promoting
a conservative notion of family formation and of excluding individuals
who do not fit into this model from access to assisted reproductive ser-
vices. The legislation is not an appropriate model for governing assisted
reproductive technologies in a pluralist manner. As Krause and Marchesi
rightly observe:

           The [...] legislation suggests the “proper way to have children”
       is within the bounds of the heterosexual family organized around
       traditional gender roles and a cohesiveness borne of homogeneity
       (Krause and Marchesi 2007, 358).

    The 2004 Act is the result of a long campaign by the Vatican and con-
servative Catholic politicians and pressure groups to re-impose Roman
Catholic moral values in law following a period of liberalisation in the
1970s and 1980s. As Krause and De Zordo have noted in this regard:

           The rigid politics of life operating in Italy supported by the
       Catholic Church and sympathetic politicians defends the ‘life’ and
       the rights of the embryo and the ideal Catholic family at all costs.
       As a result, women who do not have children or who postpone
       motherhood are stigmatized, as are infertile women and couples
       who confront a restrictive law on medically assisted technologies,
       which excluded single women and same-sex couples (Krause and
       De Zordo 2012, 143).

    The introduction of the Act creates a paradox in that the pre-existing
protections of rights in the area of human reproduction contained in the
Italian Constitution and in the Abortion Act of 1978 now share legal
space with a dissonant embryo protection model which values an abstract
model of life as sacred and devalues individual lives and their right to
choose. In this model the embryo is constructed as a subject independent
of the woman in whose womb it exists. Such independent embryonic sub-
jects are as Ingrid Meltzer (2011, 117) has put it: “framed as the embodi-
ment of a vulnerable nature that was under attack, and as – lacking their
own voice – in need of the law’s protective intervention”. For Meltzer this
Hanafin                                                                     47
leads to the construction of the embryo as “a new citizen subject” (Melt-
zer 2011, 118).
    The 2004 Act has been the subject of continuous contestation both at
the political level (in the form of an ultimately unsuccessful citizen initia-
tive referendum in 2005) as well as the subject of numerous legal chal-
lenges (at the level of local courts, the Italian Constitutional Court and,
most recently, in 2012 a successful challenge at the Court of First In-
stance of the European Court of Human Rights in Strasbourg). The cu-
mulative effect of the many court challenges has led to a gradual judicial
reworking of the Act. However, despite such judicial intervention, the
Act itself still remains on the statute books due to a lack of willingness on
the part of the main political parties of the centre right and centre left to
revise it.
    This article focuses on the manner in which groups and individuals af-
fected by the Act’s prohibitions have contested the legislation’s prohibi-
tions, and, in so doing, examines the extent to which this might constitute
an example of what Nikolas Rose has termed an ethopolitics. Rose’s no-
tion of ethopolitics can be seen as a form of affirmative biopolitics in
which citizens claim for themselves rights to make decisions about and
over their bodies (Rose 2001, 19). The concept of ethopolitics allows us to
visualize the potential of an active counter-politics of resistance for restor-
ing reproductive citizenship to those deprived of it by legislative interven-
tions of this nature. This resistant biopolitics of living citizens calls for a
continuous struggle to maintain and win rights. It allows us to move from
“a rigid politics of life” to adopt Krause and De Zordo’s term to a “power
of life as such” (Fassin 2009, 49). In other words it demonstrates the
power of individuals acting in concert to contest draconian state action
and allows us to see in Fassin’s terms that “another politics of life is pos-
sible” (Fassin 2009, 44). This is all the more important when politicians
refuse to provide a facilitative and fair framework for the governance of
assisted reproductive technologies.


2. Law, Religion and the Emergence of Embryo Protection

    The 2004 Act can be described as an embryo protection law in that its
overriding objective is the protection of the embryo at the expense of
women’s right to exercise reproductive choice. The idea of giving an em-
bryo legal recognition immediately sets up a conflict between this particu-
lar ‘subject’ and living citizens who may want access to reproductive ser-
vices. The embryo is deployed in the legislation as a weapon to protect an
imagined notion of the Italian family, one which is based on a Roman
Catholic marriage between heterosexuals. All other family formations are
seen as a threat to such an imagined dominant Italian family model. The
Act is the apogee of a concerted campaign by the Vatican and conserva-
tive politicians to reclaim a narrow, patriarchal conservative notion of the
48                                                             Tecnoscienza - 4 (1)

nation. This is a politics which lessens the freedom of living citizens in the
interest of an abstract notion of Life. This curious form of biopolitics uses
the apparatus of personhood to give symbolic life to the not yet living and
devalues the lives of living citizens. As philosopher Roberto Esposito
(2011, 185) has put it: “the concept […] of the ‘sanctity’ of life is often
used as an apparatus of exclusion or suppression of other lives, consid-
ered as not as relevant”. Indeed, as Franca Bimbi has noted, the legisla-
tion is based on a politics of fear and security. As she has observed, the
law drew: “on fears, on the need for security, on the need to identify the
internal from the external” (cited in Marchesi 2007, 12).
    In order to see how such a restrictive law managed to achieve such
widespread élite political support it is necessary to examine the history of
attempts to govern assisted reproduction and the influence on élite politi-
cal culture of traditionalist Roman Catholic thinking on the family. Until
2004 the only instrument which governed assisted reproductive technolo-
gy in Italy was a ministerial circular, introduced in 1985 by the then Min-
ister for Health, Costante Degan. The Degan Circular specified that as-
sisted reproduction with donor eggs and sperm was prohibited, and also
prohibited the creation and cryopreservation of embryos for deferred im-
plantation, industrial use and scientific research. Under the Circular ac-
cess to assisted reproductive services was permitted only to married cou-
ples. These prohibitions did not apply to clinics in the private sector (see
further, Valentini 2004, 95-109). The Degan Circular of 1985 was a mis-
guided attempt at partial regulation of the field. Regulation was partial in
that it applied only to the provision of assisted reproductive technology in
Italy’s national health service. As Ramjoue and Kloti have observed, the
Circular resulted:

           in unequal access to ART. Wealthy patients [could] afford
       faster access to a wider range of ART than those who depend[ed]
       on the [Italian National Health Service] for treatment and finan-
       cial coverage. In the absence of a comprehensive regulation on
       ART, many techniques [were] available to a few, and few [were]
       available to many (Ramjoue and Kloti 2004, 59).

    As a result, a two-tier system of assisted reproductive services devel-
oped, one private and free from regulation, the other public and subject
to great restrictions. The medical profession added a further layer of pro-
hibition in 1995 with the introduction in that year of a revised version of
its Code of Medical Ethics which prohibited all medical practitioners
from using surrogate motherhood of any kind, insemination of gay and
lesbian couples and single people, post-mortem insemination, and the in-
semination of women with non-precocious menopause (see Parolin and
Perrotta, 2012). This partisan anti-scientific approach was to provide a
foretaste of the way in which the issue of assisted reproduction would be
addressed by political elites in Italy for the coming twenty years.
Hanafin                                                                    49
    This is not to say that attempts had not been made to fill the legislative
void in the years between 1985 and 2004. However none of these at-
tempts were successful. In 1989 a number of Bills were introduced which
would provide a legislative framework for the new reproductive technol-
ogies. These included one which would extend the provision of IVF to
single women; another which would allow embryo cryopreservation and
gamete donation and which would have extended provision of ART in
both public and private clinics, and a third which would have given the
embryo legal protection from the moment of conception. None of these
Bills was successful given the lack of political will to legislate on the mat-
ter. In 1995, a Commission was established by the Ministry of Justice,
under the chairmanship of Francesco Busnelli, to look into the area. This
Commission recommended that donation of gametes be permitted but
that single women not be allowed access to assisted reproductive services.
The Report of the Busnelli Commission was not implemented by the
Government (Flamigni and Mori 2005, 28). The next attempt to address
the question of regulating the assisted reproduction sector came in 1997
when a centre-left coalition government was in power. In 1997 the Presi-
dent of the Parliamentary Social Affairs Committee, Marida Bolognesi,
announced that the Committee would begin an inquiry into the feasibility
of legislation in the sector. In 1998 the committee presented a draft Bill
which limited access to assisted reproduction to heterosexual couples
who were either married or in a stable relationship but allowed both do-
nor insemination and embryo research for therapeutic purposes. It also
provided that the number of embryos produced in each treatment cycle
should be limited to that amount strictly necessary for a single implanta-
tion, and in any case not more than four.
    However, during its passage through both houses of the Italian Par-
liament, the Bill was subject to several amendments, which would trans-
form its structure and tone radically. The amendments were added by a
cadre of Roman Catholic conservative parliamentarians whose aim was to
ensure that the rights of the embryo be inserted in the Bill. The Bill was
amended to include a stipulation that in the carrying out of assisted re-
productive services, medical practitioners should take into account the
interests of the embryo as well as the rights of the woman involved. The
Bill was further amended by the introduction of a ban on the freezing of
embryos, a limit of three embryos to be produced and implanted in any
one treatment cycle, and an amendment was added which would allow
for the adoption of embryos as if they were children. Marida Bolognesi
resigned as the sponsor of the Bill, as she felt that, in its transformed
state, she could no longer support it. She was replaced by Alessandro Cè
of the Northern League, whose sympathies were of a far more conserva-
tive nature. The Chamber of Deputies approved the amended Bill by a
majority of 266 to 153 on 26 May 1999. Once the Bill arrived in the Sen-
ate for approval, the role of sponsor was taken over by Francesco Varella
of the Green Party. He attempted to undo some of the more extreme
50                                                                 Tecnoscienza - 4 (1)

amendments made in the lower house. The passage of the Bill through
the Senate was delayed by the decision to suspend discussion until after
the administrative elections scheduled in several regions for April 2000.
Once the Bill resumed its passage through the Senate, certain parts of the
text, which had been amended in the lower house, were further amended.
This included the removal of the reference to the embryo as being pos-
sessed of rights. However, the proposed legislation was eventually aban-
doned due to the fall of the coalition government (see Cirant 2005, 182-
184).
    After the failure of the centre-left government’s attempt to pass legis-
lation on assisted reproduction, the new centre-right government led by
Silvio Berlusconi reopened discussion of such a law after coming to pow-
er in 2001. With a centre-right majority the conditions for the passing of a
more restrictive embryo protection law were more favourable. By 2002
the new Government had secured the approval of a revised draft of the
previous Bill in the Chamber of Deputies. The revised Bill granted the
embryo symbolic legal recognition, and prohibited both embryo freezing
and donor insemination. After its initial approval, the Bill remained in
limbo awaiting further discussion in the Senate. The Government did not
appear to be in a hurry to speed the Bill through to final approval. How-
ever, the Vatican decided to expedite matters. In February 2003, on the
occasion of the anniversary of the signing of the Lateran Pacts of 1929,
representatives of the Government attended a meeting with Vatican offi-
cials.1 On this occasion, the Pope’s displeasure at Government policy in
relation to its support for the war in Iraq, the implementation of discrim-
inatory legislation on immigration, the so-called Bossi-Fini law (named
after its instigators, respectively the leaders of the separatist Northern
League and of the former neo-fascist National Alliance), and the Gov-
ernment’s opposition to the introduction of a system of clemency for
prisoners, was communicated to the Government. The Vatican pointed
out that the swift approval of a law on assisted reproduction in line with
Roman Catholic thinking would go some way to winning back its approv-

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
  The Lateran Pacts were concluded between the Vatican and the fascist regimeon
February 11, 1929. The pacts gave official recognition to the special position of
the Church in Italian politics. The Pacts recognised Roman Catholicism as the
state religion as well as giving many concessions to the Vatican, including, tax ex-
emptions for employees of the Holy See, exemption from jury service for the cler-
gy, and providing for the teaching of Christian doctrine in primary schools. The
Pacts were given continued recognition in the post-fascist republic by virtue of
Article 7 of the Constitution of 1948 which provides as follows: “The State and
the Catholic Church are, each within its own ambit, independent and sovereign.
Their relations are regulated by the Lateran Pacts. Such amendments to these
Pacts as are accepted by both parties do not require any procedure of Constitu-
tional Revision.”
Hanafin                                                                     51
al and, more importantly, its political backing (see Valentini 2005, 39-42).
After this meeting the Government’s position on assisted reproduction
legislation changed. By December 2003, the Government had obtained
approval of the draft legislation in the Senate, without any significant
amendments. The Bill became law on 10 February 2004 after final ap-
proval by the Chamber of Deputies.
     Significantly, the centre-left opposition did not act to oppose the legis-
lation in spite of its blatantly unconstitutional and anti-pluralist nature. In
fact, there seemed to be no major difference between the opposition and
the Government on the issue when it came to the final vote. They seemed
to have a common interest in pushing the law forward based on shared
patriarchal values (Cirant 2005, 190-204). Francesco Rutelli, then leader
of the centre-left Margherita party, declared that his party members
should be allowed to vote according to their conscience on the law. Rutel-
li’s conscience and those of many of his party colleagues led them to vote
for the Act, leading to the absence of any effective parliamentary opposi-
tion (see Lalli 2004, 163-165; Valentini 2005, 123-136). The centre-left
argued that any legislation, however flawed, was better than none. How-
ever, in this case, it was obvious that they had their eyes on the Roman
Catholic vote which is still a substantial.one for political parties seeking
an electoral majority.


3. The Biopolitics of Reproductive Citizenship

    The legislation gives implicit legal recognition to what is termed the
concepito, literally ‘that which is conceived’. This broad term encom-
passes all stages of pre-natal development including both the embryo and
the foetus. However, the term concepito is employed only in Article 1 of
the Act. In the rest of the Act the object of legal protection is named as
the embrione, the embryo. In this case using the term concepito could im-
ply that all unborn life once conceived is deserving of protection. This
notion of embryo protection goes beyond the existing balance drawn in
Italian law between the mother and foetus in the case of abortion. Under
a ruling of the Constitutional Court of 1975 it was held that the welfare of
the foetus does not override a woman’s right to health. This was later
confirmed by the introduction of the Abortion Act of 1978, which allows
for pregnancy termination up to the twelfth week of gestation. There is
therefore a stark contradiction in Italian law in relation to the question of
reproductive rights. On the one hand the Constitution and abortion legis-
lation provides a liberal framework in which reproductive choice is legally
valued. On the other hand, the 2004 Act introduced into law a limitation
on individual choice in relation to reproduction in favour of a symbolic
recognition of the embryo as legal subject.
    The 2004 Act limited access to in-vitro fertilisation to those catego-
rised as infertile or sterile couples. Significantly, couples who are carriers
52                                                           Tecnoscienza - 4 (1)

of a hereditary genetic condition could not as a consequence gain access
to assisted reproductive services in Italy. This aspect of the Act has been
the subject of numerous court challenges, culminating in a successful ap-
peal to the Court of First Instance of the European Court of Human
Rights in August 2012. The Act in Article 13 provides a general prohibi-
tion on any form of embryo experimentation. It does however allow clini-
cal research on embryos only when exclusively therapeutic and is used to
advance the well-being of the embryo. However the 2004 Act does not
explicitly prohibit pre-implantation genetic diagnosis. This ambiguity was
further compounded when the Government introduced the Code of
Practice pursuant to the Act in 2004, which explicitly prohibited pre-
implantation genetic diagnosis. This was beyond the statutory powers of
the Minister for Health who introduced the Code of Practice as it created
a prohibition which did not exist in the Act itself.
     The Act allows only assisted reproduction using the egg and sperm of
the couple involved and prohibits the use of donor gametes. This reflects
a particular ideological narrative, which sees homologous reproduction,
(that is, reproduction using genetic material from the couple), as natural,
and heterologous reproduction, that which uses donated genetic materials,
as offending against nature (see further Marchesi 2012). In addition the
Act limited access to assisted reproductive services to adult heterosexual
couples who are either married or in a stable relationship, are of a poten-
tially fertile age and are both living. Moreover, the Act only permitted
consent to the procedure to be withdrawn up to the point at which the
egg is fertilised. This could have the consequence of women being forced
to go through with the procedure once the egg is fertilised. This forced
consent measure breaches Article 32 (2) of the Italian Constitution which
states that no person shall be subjected to medical treatment without legal
sanction and that the law can in no manner violate the limits imposed by
the need to respect human dignity.
     The conservative model of family relations inherent in the legislation
has been subjected to judicial challenge in a series of cases in the lower
courts and the Constitutional Court in Italy as well as a successful appeal
to the European Court of Human Rights in Strasbourg. These cases have
been taken by a coalition of medical and scientific associations, reproduc-
tive rights interest groups and individuals affected by the law’s provisions.
Many of the individuals who have challenged the legislation’s provisions
have been supported in doing so by reproductive rights interest groups
such as Amica Cicogna, Luca Coscioni, and Cerco un Bimbo as well as
medical and scientific interest groups such as WARM (World Association
for Reproductive Medicine) (see Gallo and Lalli 2012, 85). Such a prac-
tice of what Nikolas Rose and Carlos Novas call “rights bio-citizenship”
(Rose and Novas 2005, 442) has led to courts redefining the terms of the
2004 Act and dismantling some of its prohibitions. Rose and Novas
(2005, 442) define “rights bio-citizenship” as: “forms of activism such as
campaigning for better treatment, ending stigma, gaining access to ser-
Hanafin                                                                             53
vices”. This practice of rights bio-citizenship also has an ethical dimen-
sion which Nikolas Rose, writing elsewhere, terms ethopolitics. This term
brings together an active campaigning politics with an ethical dimension
which allows individuals to improve their position in society through an
active working on the self in relation with others. This thinking of Rose’s
is indebted to Michel Foucault’s later work on ethics as care of the self
(see Foucault 1978, 1985, 1986). This is an active thinking of citizenship
which makes of the citizen more than a mere object of state governance
but, rather, an active participant in political affairs.
    In Rose’s interpretation of Foucault’s thought one can see the emer-
gence of a politics of resistance which works to counter the construction
and governance of individuals as objects of political power. It could be
called an affirmative biopolitics which allows individuals to engage power
and act in a collective manner to resist their exclusion from full citizen-
ship. As such, ethopolitics for Rose, refers to:

              ways in which the ethos of human existence – the sentiments,
          moral nature or guiding beliefs of persons, groups, or institutions –
          have come to provide the ‘medium’ within which self-government
          of the autonomous individual can be connected up with the im-
          peratives of good government. In ethopolitics, life itself, as it is
          lived in its everyday manifestations, is the object of adjudication
          […] ethopolitics concerns itself with the self-techniques by which
          human beings should judge themselves and act upon themselves to
          make themselves better than they are. While ethopolitical concerns
          range from those of lifestyle to those of community, they coalesce
          around a kind of vitalism: disputes over the value to be accorded
          to life itself, “quality of life’, “the right to life” or “the right to
          choose”, euthanasia, gene therapy, human cloning and the like”
          (Rose 2001, 18).

    Thus, for Rose (2001, 19), ethopolitics enables individuals to: “use
their individual and collective lives, the evidence of their own existence
[to] demand civil and human rights […] They call for recognition, re-
spect, resources […] control over medical and technical expertise”..
Rose’s notion of ethopolitics allows us to visualize the potential of deliber-
ative participative politics within the context of reproductive rights and
citizenship.
    In the current battle for reproductive citizenship in Italy one can see
the play between the ethopolitics of movements of individuals who are at-
tempting to self-style their reproductive choices, and what I have called
elsewhere the vitapolitics of politicians and the Roman Catholic Church
who attempt to prevent the creation of this right (Hanafin 2007, 5). This
vitapolitics is based on rigid moral beliefs and refuses to recognize contra-
54                                                                  Tecnoscienza - 4 (1)

ry views . In reaction to the 2004 Act there has been an instantiation of an
            2

ethopolitics by groups and individuals affected by genetic illness who see
the Act as a major obstacle to gaining access to assisted reproductive
technologies and to the development of medical research to identify
treatments for genetically inherited conditions. As Ingrid Meltzer (2011,
111) has observed: “Speaking in the name of their physical vulnerability
and mobilizing their damaged bodies, they acted as “biological citizens””.
Such biological citizens use their bodies as a strategic means of achieving
full reproductive citizenship. The notion of the biological citizen is an in-
teresting one in that it brings together both the reality of contemporary
political regimes in which we are all the subjects of governance, with the
co-existing ability to resist such governance in the mode of an affirmative
biopolitics. It creates a space of resistance in which citizens take on an
active role in contesting the manner in which their citizenship is con-
structed. In challenging the law, such ethopolitical resistance has taken
two forms, one fought on the political plane in the form of a citizen initia-
tive referendum, and the second, fought in the courts by individuals con-
testing the act on the grounds that it interferes with and is incompatible
with pre-existing constitutional rights to privacy, health, and freedom
from discrimination.


3.1. The Citizen Initiative Referendum: A Failed Ethopolitical In-
     tervention

    The citizen initiative referendum failed in large part due to successful
negative campaigning on behalf of the Roman Catholic Church. The re-
peal referendum (referendum abrogativo) is a form of citizen initiative ref-
erendum which requires that the petitioners for a referendum obtain at
least 500,000 signatures of citizens with the right to vote and allows the
petitioners to outline their proposals for either partial or total repeal of
the legislation in question. In opposition to the 2004 Act, a referendum
committee was formed, which was made up of an alliance of the Radical
Party, representatives of parties of the centre-left, the Green Party, and
other interested parties, including scientists, doctors, and patients’
groups. Once the requisite number of signatures is obtained the referen-
dum proposals are then scrutinized for admissibility by the Constitutional
Court (see further Barbera and Morrone 2003, 11-27). The referendum
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2
 The notion of vitapolitics refers to the manner in which conservative Roman
Catholic interests in Italy (and in other jurisdictions) struggle to insert in public
policy a definition of life as sacred from the moment of conception. Such an ide-
ology valorizes the abstract notion of life over the actual rights of living citizens,
particularly women. Such a model would criminalize abortion and limit severely
access to in-vitro fertilization. (see further Hanafin, 2007, pp. 4-10).
Hanafin                                                                   55
committee called for the total abrogation of the legislation. In addition,
and in the event that the Constitutional Court would reject this proposal,
four proposals, which would partially repeal the legislation, were also
proffered. On obtaining the requisite number of signatures, the Constitu-
tional Court decided to allow four out of the five proposed referendum
proposals. The proposal that was rejected was that which called for the
total repeal of the Act. The main opposition to the referendum came from
the Roman Catholic Church. The Church set up an anti-referendum
committee called ‘Science and Life’ (Scienza e Vita) to campaign on its
behalf. The anti-referendum campaign instead of calling for a ‘no’ vote
called for voters to abstain, so that the required quorum of 50% plus 1 of
voters would not be reached and the ballot would be declared invalid.
This tactic was seen as a far more effective way of allowing the law under
question to remain untouched but was also a subversion of the so-called
deliberative democratic process.
    The anti-referendum campaign proved to be successful. The quorum
was not reached with only 25.9% of voters turning out (Luzi 2005). The
reason for the large abstention cannot be attributed simply to the
Church’s call for a boycott of the polls. The issue of assisted reproduction
was not one which excited the enthusiasm of many voters. They saw it as
an issue which affected a minority of the population. Moreover, the re-
cent history of referendum in Italy had been marked by a large rate of ab-
stention. In the years immediately preceding the referendum on the as-
sisted reproduction law (i.e. between 1997 and 2003) eighteen referen-
dum were held and not one of these achieved a quorum (Barbera and
Morrone 2003, 209-251). In addition there may have been a further ex-
planation for the lack of a quorum in the particular case of the assisted
reproduction referendum. The feminist writer Silvia Ballestra has astutely
observed that there was an unwillingness on the part of a large section of
the Italian electorate to engage with the vital issues raised by the referen-
dum campaign. Instead, drained of curiosity or civic responsibility, in a
polity which had become a mediocracy, many Italians simply could not be
bothered to inform themselves of what exactly was at stake in this refer-
endum (Ballestra 2006, 30-31).


4. Rights, Resistance and the Bio-Constitutional Reframing
   of Assisted Reproduction
    On the legal plane cases challenging the Act have been fought at
courts of first instance, the Italian Constitutional Court and the European
Court of Human Rights in Strasbourg. This legal ethopolitics demon-
strates the ability of citizens affected by the Act in coalition with repro-
ductive rights interest groups and scientific and medical groups to win
back rights within the context of assisted reproductive technologies by
harnessing pre-existing constitutional rights which support a liberal mod-
56                                                             Tecnoscienza - 4 (1)

el of reproductive citizenship. In this sense, what such legal contestations
demonstrate is a form of, what Sheila Jasanoff has called, ‘bioconstitu-
tionalism’. For Jasanoff (2011, 290), ‘bioconstitutionalism’: “displays the
power of human subjects to articulate new claims vis-à-vis governing in-
stitutions, thereby demonstrating the productivity of constitutional ideas
as resources for bottom-up self-fashioning”. Thus the ethopolitical en-
counter with the law involves precisely an enactment of ‘bioconstitution-
alism’. It undoes the imposition of a biopolitical ordering on individuals
and allows them, through their own continuous action, to perform an ac-
tive and contestatory form of citizenship. As such, as Jasanoff (2011, 290)
reminds us, ‘bioconstitutionalism’ is: “a dispersed and active process of
reordering – indeed reconstituting – knowledge and society”. These cases
allow for another more pluralist voice in relation to reproductive citizen-
ship to be listened to and heard in the public domain.
    The initial cases to challenge the Act were heard almost immediately
upon its introduction with the first heard in Catania in May 2004 (Tribu-
nale di Catania, 1 sezione civile, 3 May 2004), followed by another in Ca-
gliari in 2005. In the Catania case, a couple, who were both healthy carri-
ers of the genetic condition beta thalassaemia (a blood disorder that re-
duces the production of haemoglobin leading to a lack of oxygen in many
parts of the body), requested approval of pre-implantation embryo selec-
tion to ensure that the child born as a result would not suffer from this
condition. The judge ruled that this was not permissible under the Act,
and noted that the fertilised eggs be implanted whether or not there is a
risk that they may carry this disease. This ruling was based on an interpre-
tation of Article 14 of the Act which prohibited the creation of a number
of embryos greater than that strictly required for one contemporaneous
transfer. The number created should be no greater than three. The couple
argued that the 2004 Act was incompatible with the rights guaranteed in
Article 2 (the guarantee of inviolable human rights) and Article 32 (2)
(the right not to be forced to submit to unwanted medical treatment) of
the Italian Constitution. The judge dismissed these claims, noting that the
obligation to transfer three embryos into the womb simultaneously did
not constitute unconsented to medical treatment contrary to Article 32
(2) of the Constitution. The judge also rejected the claim that the couple’s
inviolable human rights were being interfered with, noting that there was
no fundamental right to have a child of one’s desires. The judge argued
that the child in this case is a potential child rather than an actually exist-
ing one. If the couple were to continue with the embryo transfer and sub-
sequently discover that the future child would suffer from such a condi-
tion, the only option left open to them would be a therapeutic abortion.
The process would then have to start over again with no guarantee that a
similar outcome would not occur.
    In the Cagliari case in July 2005 the Tribunale Civile of Cagliari re-
ferred the question of the constitutionality of Article 13 of the Act to the
Constitutional Court (Corte Costituzionale) for review. The Act in Article
Hanafin                                                                    57
13 provides a general prohibition on any form of embryo experimenta-
tion. Here, a couple who had been refused access to pre-implantation ge-
netic diagnosis by their consultant claimed that this refusal was contrary
to Articles 2, 3 (equality and non-discrimination) and 32 (1) of the Italian
Constitution. The female partner had, on a previous occasion, undergone
IVF treatment and had discovered in the eleventh week of her pregnancy
that the foetus was affected by beta thalassaemia. As a result she decided
to undergo a pregnancy termination. On this occasion the couple wanted
to make sure that the embryo was not affected by the condition before
implantation. They refused to go ahead with the embryo transfer before
undergoing a pre-implantation genetic diagnosis. The doctor involved re-
fused this service on the grounds that Article 13 of the 2004 Act prohibit-
ed it.
    The judge in this case noted that the question of the constitutional le-
gitimacy of the law was not manifestly without foundation. In referring to
decisions of the Constitutional Court in relation to abortion, the judge
noted that the Constitutional Court had always declared in favour of the
right to health of the woman when it came into conflict with the protec-
tion accorded to the foetus. In addition, the judge spoke of the right of a
woman in such a case to receive the fullest information on the state of
health of the embryo. In this case the general right to receive information
in relation to medical procedures would apply to information obtained
via pre-implantation genetic diagnosis in relation to the state of health of
the embryo. The judge noted that this was the case in relation to deter-
mining the health of a foetus in utero. Therefore, if couples in the posi-
tion of the applicants were to be refused access to pre-implantation genet-
ic diagnosis then this would place them in a different position to couples
who had a right to obtain access to tests to determine the state of the
health of the foetus in utero. This raised the question of whether this ban
was in accord with the equality provisions in Article 3 of the Constitution,
as well as the human rights provisions of Article 2 and the specific provi-
sions in relation to the right to health in Article 32 (1). The judge referred
the matter to the Constitutional Court for a consideration of the constitu-
tionality of this aspect of the law.
    The matter was heard by the Constitutional Court on 24 October
2006 (Corte Costituzionale, Ordinanza 369/2006). The Court declared
inadmissible the question of the constitutional legitimacy of Article 13.
The written decision was produced on 9 November 2006 wherein the
Court stated that the Cagliari court’s assumption was contradictory in
that the constitutionality of the impugned article could be deduced from
other articles in the 2004 Act and in the light of the interpretation of the
entire Act against the background of its stated intent. In other words, for
the Court, the 2004 Act had as its objective the protection of the embryo
and, as such, any procedure which would harm the embryo is not legiti-
mate. However, the Constitutional Court refused to measure the constitu-
tional validity of Article 13 against the principles of equality and the right
58                                                            Tecnoscienza - 4 (1)

to health in the Constitution. It merely stated that the law itself was justi-
fied by its legitimating principles. Clearly unwilling to judge the constitu-
tionality of the issue, the Court (in a decision which was not unanimous)
stated that the law is legitimate because of its ideological premise.
    Since this dispiriting and irrational decision of the Constitutional
Court in 2006, there have been several successful challenges to the Act in
both the lower courts and the Constitutional Court, culminating in a dec-
laration of incompatibility of the Act with the European Convention of
Human Rights and Fundamental Freedoms by the European Court of
Human Rights in 2012. In this phase of judicial interpretation of the Act a
more robust and interventionist style emerged in which courts declared
several parts of the Act incompatible with rights protected by the Italian
Constitution. One of the most important of such cases was the decision of
the Regional Administrative Tribunal of the region of Lazio in January
2008 (Sentenza n. 398, reg. ord. n. 159 del 2008, 21 January 2008). This
Case was initiated by the World Association for Reproductive Medicine
(WARM), a not-for-profit organisation which represents the interests of
professionals working in the area of medically assisted reproduction. The
action challenged the legitimacy of the Code of Practice introduced by
Ministerial Decree in 2004, as being beyond the powers of the Minister of
Health, as well as the constitutionality of Article 13 (the ban on embryo
experimentation) and Article 14 (the transfer of no more than three em-
bryos to the womb simultaneously) of the 2004 Act. WARM also contest-
ed the conflation of the terms sterility and infertility in the Act and the
legal status accorded to the embryo in the Act. This challenge, which also
had the support of a number of other reproductive rights organisations
(namely Amica Cicogna, Luca Coscioni, and Cerco un Bimbo), was op-
posed by the Italian government together with a number of conservative
civil society organisations, such as the Movement for Life.
    The Court in its decision overruled parts of the Code of Practice in-
troduced pursuant to the 2004 Act (Ministerial regulations – Explanatory
notes on assisted reproductive technology – introduced by Ministerial
Decree n. 15165 of 21 July 2004). The impugned provisions related to Ar-
ticle 13 (5) of the Act, which prohibits experimentation on human em-
bryos. The decision also raised doubts over the constitutionality of Article
14 (2) of the Act. In effect, what the decision did was to overrule the limi-
tation on pre-implantation genetic diagnosis of embryos for observational
purposes only, on the basis that such a provision could not be enacted by
secondary legislation. The Minister of Health had therefore exceeded his
powers in introducing this measure by ministerial regulations. As a result
of this decision, the guidelines on assisted reproduction were revised on
11 April 2008 to remove the limitation on pre-implantation genetic diag-
nosis for observational purposes only.
    The Regional Administrative Tribunal of Lazio in its decision of 21
January 2008 also referred the question of the constitutionality of Article
14 of the Act to the Constitutional Court. The Constitutional Court, in its
Hanafin                                                                     59
decision of 1 April 2009 (Corte Costituzionale, sentenza n. 151/2009, 1
April 2009) reversed the prohibition contained in Article 14 of the 2004
Act on the transfer in any one cycle of a maximum of no more than three
embryos. In addition to the referral from Lazio, the Constitutional Court,
in the same decision, also considered two referrals from the Tribunale
Ordinario of Florence from its decisions of 12 July 2008 and 26 August
2008 (see Tribunale Ordinario di Firenze, ordinanza del 12 luglio 2008,
reg.ord. n. 323 del 2008 and Tribunale Ordinario di Firenze, ordinanza
del 26 agosto 2008, reg.ord. n. 382 del 2008). In both of these decisions
the Florence court questioned the constitutionality of Article 14 of the
Act insofar as it prohibited the freezing of any excess embryos which
were not used in any one cycle of IVF, and imposed a maximum limit of
three embryos which could be created in any IVF treatment cycle and the
need for their simultaneous transfer to the patient’s womb. In addition,
the Florence Court questioned the constitutionality of Article 6 (3) of the
Act which decreed that once a woman had consented to the simultaneous
transfer of these three embryos she could not withdraw that consent. The
Constitutional Court in its decision held that Article 14 (2) of the Act was
unconstitutional in that it breached Article 3 of the Constitution in rela-
tion to equality and Article 32 of the Constitution which upholds the
right to health. The Court observed that the prohibitions contained in Ar-
ticle 14 of the Act ignored the individual personal and medical circum-
stances of women who underwent IVF and as such treated widely diverse
medical situations in a similar manner. The idea that one size fits all in
reproductive medicine ignores the highly particular and individual treat-
ment required in different cases. As such this article fell foul of the equali-
ty provisions of the Constitution in that it proposed that the same medical
solution should be applied to different cases. Moreover, such a blunt pre-
scription also interfered with a woman’s right to health in the Constitu-
tion. As a result of this decision, Article 14 (2) of the 2004 Act is no long-
er to be interpreted as placing a limit on the number of embryos to be
transferred. The Court held that the number of embryos transferred in
any treatment cycle should be based on individual expert medical opinion
based on the facts of each individual’s case. The decision also overruled
the ban in Article 14 (1) on the freezing of embryos. As a result of the de-
cision, embryos which might not be used in a treatment cycle may now be
frozen for use in a later treatment cycle. The Court, in referring to Article
1 of the Act, noted that the interests of all parties (not just the embryo)
should be considered, citing the Constitutional Court’s previous juris-
prudence on abortion in which the rights of the woman to self-
determination and health should be given priority. The Court thus af-
firmed the autonomy of individual women as well as the professional au-
tonomy of medical practitioners who should be allowed to decide inde-
pendently on the treatment to be followed depending on the individual’s
medical history and needs. The Court observed that the principle of med-
ical autonomy and responsibility as well as the principle of patient auton-
60                                                              Tecnoscienza - 4 (1)

omy should prevail in such cases and not the interests of the embryo.
    In October 2010, the Tribunale Civile of Florence (Tribunale civile di
Firenze, 6 October 2010) overturned the ban on IVF with donor eggs or
donor sperm contained in Article 4 of the Act and referred this aspect of
the Act to the Constitutional Court for review. On 21 October 2010 the
Tribunale Civile of Catania made a similar ruling, questioning the consti-
tutionality of the ban on IVF using donor gametes (Tribunale civile di Ca-
tania,21 October 2010). In the decision of the Tribunale Civile of Salerno
of 13 October 2010 the limitation in Article 1 of the 2004 Act on access
to in-vitro fertilisation to only those people categorised as infertile or ster-
ile was successfully challenged (Tribunale civile di Salerno, 13 October
2010). The Court ruled in favour of access to pre-implantation genetic
diagnosis in the case of a couple who were neither sterile nor infertile.
The couple suffered from amyotrophy, a genetically inherited condition,
which causes the progressive wasting of muscle tissues.
    The 2004 Act was the object of a third Constitutional Court decision
in May 2012. This case concerned the question of the prohibition of IVF
using donor gametes under Article 4 of the Act. The decision however
turned out to be more of a non-decision in that it held that the cases
should be referred back to the regional courts from which they issued for
re-hearing. The case involved references from three lower courts, in Flor-
ence (Tribunale Ordinario di Firenze, 6 September 2010), Catania (Tri-
bunale Ordinario di Catania, 21 October 2010), and Milan (Tribunale
Ordinario di Milano, 2 February 2011) in relation to Article 4 (3) of the
Act (which bans IVF using donor gametes), on the grounds of potential
constitutional incompatibility. The Florence case involved a couple of
whom the male partner was infertile and, as a result, the couple required
access to donor sperm. The clinic they attended could not carry this out
as the Act prevented it from doing so. The Court was of the opinion that
Article 4 of the Act was unconstitutional but noted that it needed to refer
the matter to the Constitutional Court as lower court judges do not have
the power to declare a part or whole of a statute unconstitutional. The
reference from the court in Catania concerned a couple where the female
partner suffered from premature menopause and who attended a clinic in
order to request an egg donation. However, she was prevented from do-
ing this by the prohibition contained in Article 4 (3) of the 2004 Act. The
Court noted a possible breach of the Constitution and observed in addi-
tion that this procedure was medically necessary. Again, due to the inabil-
ity of lower court judges to declare statutes unconstitutional, the case was
referred to the Constitutional Court. In the Milan case a couple required
sperm donation as the male partner suffered from azoospermia. In this
case the prohibition contained in Article 4 (3) of the 2004 Act prevented
the couple from gaining access to such a procedure. All three courts not-
ed that there was a potential constitutional violation.
    The justification given by lawyers on behalf of the Government in the
argument before the Constitutional Court for such a prohibition was the
Hanafin                                                                    61
right of the child to know the biological identity of their parents. This jus-
tification had more to do with a conservative mentality in relation to fami-
ly relations rather than any rights of the child involved. Indeed this was
clearly manifested in the parliamentary debates on the legislation where
those who supported the law likened donor insemination to adultery, re-
sulting in the birth of a child which was not that of the husband (see Lalli
2005, 129-171). On hearing the references before it the Constitutional
Court decided to refer the matter back to the three lower courts, using as
a justification for this, the then recent decision of the Grand Chamber of
the European Court of Human Rights in the case of S.H. and others v
Austria (Application n. 57813/00, Grand Chamber decision 3 November
2011), which had occurred after the lower courts had made their deci-
sions. The decision of the Grand Chamber overruled a decision of the
Court of First Instance of the European Court of Human Rights in S.H.
and others v Austria of April 2010, on which the three lower courts had
based their decisions. In its decision the Grand Chamber held that there
was no violation of Article 8 of the European Convention of Human
Rights and Fundamental Freedoms in a case involving a challenge to the
provision of the Austrian Assisted Procreation Act of 1992 which prohibits
the use of sperm from a donor for IVF and ova donation in general. The
Austrian Assisted Procreation Act only allows IVF with gametes from the
couples involved. Even though the Grand Chamber noted that there was
a clear trend across Europe in favour of allowing gamete donation for
IVF, it added that an emerging consensus was still under development
and so was not, as yet, based on settled legal principles. The Grand
Chamber held, by a majority of thirteen votes to four, that there had been
no violation of the Convention. The Grand Chamber further noted that
the Austrian legislation was not disproportionate as it had not banned in-
dividuals from going overseas for infertility treatment unavailable in Aus-
tria. This assumes, without thinking, that couples are in a position to en-
gage in such reproductive tourism.
     The decision of the Grand Chamber was entirely at odds with the
First Instance ruling in the same case (S.H. and Others v Austria, Cham-
ber judgment 1 April 2010). The Court of First Instance had held that the
impugned section of the Austrian legislation breached Article 8 of the Eu-
ropean Convention of Human Rights and Fundamental Freedoms as this
prohibition interfered with the couple’s right to access treatment which
would allow them to found a family. The lower courts had noted, based
on the Court of First Instance decision, that the prohibition in the 2004
Act of IVF using donor gametes constituted a breach of Articles 8 and 14
of the European Convention of Human Rights and Fundamental Freedoms.
The Constitutional Court observed that as the Grand Chamber had over-
ruled this decision the referring courts should re-hear these cases based
on this new development (Corte Costituzionale, Ordinanza n. 150, 2012,
pp. 11-12).
     In August 2012, the Court of First Instance of the European Court of
62                                                           Tecnoscienza - 4 (1)

Human Rights handed down a decision against Italy in relation to the
prohibition of pre-implantation genetic diagnosis in the case of a couple,
who are carriers of a genetically inherited condition. In the case of Costa
and Pavan v Italy (Application n. 54270/10), a couple, Mr. Pavan and Ms.
Costa, both carriers of a hereditary illness, cystic fibrosis, wished to pre-
vent this condition being inherited by any second or subsequent child
they might have together. In September 2006 they gave birth to a child
with cystic fibrosis, only then becoming aware that they were both carri-
ers of the disease. The couple have a one in four chance of having a child
born with the condition and a one in two chance that any future child of
theirs will be a carrier of the condition. They want to ensure that any fur-
ther child they might have would neither have, nor be a carrier of, cystic
fibrosis. The 2004 Act prevents access to pre-implantation genetic diag-
nosis to couples suffering inherited genetic conditions. It only allows ac-
cess to screening for infertile couples or where the male partner has a vi-
ral disease which can be transmitted through sexual intercourse, such as
HIV, or Hepatitis B and C. Since these exceptions did not apply to this
couple, the only option open to them as the law stood was to have an
abortion on discovery via foetal testing that the future child was either a
sufferer or carrier of the condition. In fact, Ms. Costa had conceived a
child with cystic fibrosis so decided to undergo an abortion in February
2010.
    In their application to the European Court of Human Rights in Stras-
bourg, the couple relied on Article 8 in conjunction with Article 14 of the
European Convention on Human Rights and Fundamental Freedoms.
Their complaint was that their right to privacy and family life protected
by Article 8 had been infringed in that they were not allowed access to
pre-implantation genetic diagnosis to allow them to prevent the birth of a
child with cystic fibrosis. They also claimed that they suffered discrimina-
tion, contrary to Article 14, compared to infertile couples or those cou-
ples in which the male partner has a sexually transmitted disease. In its
decision of 28 August 2012, the Court of First Instance of the European
Court of Human Rights held unanimously that the ban on access to pre-
implantation genetic diagnosis for couples with genetically inherited dis-
eases infringed Article 8 of the Convention. The Court found that there
was no breach of Article 14. The Court held that the desire of the couple
to have a child who was not affected by a genetically inherited disease of
which they were healthy carriers and to undergo pre-implantation genetic
diagnosis and IVF in order to do so was protected by Article 8 as it
formed part of their right to private and family life (Costa and Pavan v
Italy, (Application N. 54270/10) at paragraph 57). The Court unanimous-
ly declared that the 2004 legislation was incoherent in that on the one
hand it prohibited the transfer of only embryos which were not affected
by cystic fibrosis and on the other hand it allowed the couple to abort a
foetus affected by this condition. There was a clear impact on the cou-
ple’s Article 8 rights in this case as a result.
Hanafin                                                                             63
    In its judgment, the Court of First Instance in Costa and Pavan v Italy
held that this case should be distinguished from that of S.H. v Austria in
that it did not concern donor IVF, as the gametes of both partners would
be used in the procedure. As a result, the Court in Costa and Pavan v Italy
was obliged to measure the proportionality of the prohibition of pre-
implantation genetic diagnosis in light of the fact that therapeutic abor-
tion is a possibility in such a case. For the Court this was a specific and
unique situation and it noted that only two other member states of the
Council of Europe prohibited such a procedure, namely Austria and
Switzerland. The Court also noted that the Swiss government was cur-
rently considering the lifting of such a ban in its legislation. The Court
concluded that the interference with the applicants’ right to privacy con-
stituted by the ban in the 2004 Act on pre-implantation genetic diagnosis
to such couples was not proportional (Costa and Pavan v Italy, (Applica-
tion N. 54270/10) paragraphs 67-71). In particular, the Court focused on
the contradictory position which the prohibition on pre-implantation ge-
netic diagnosis for couples such as Costa and Pavan created. The court
observed:

              The consequences of such a system for the right to respect for
          private and family life of the applicants is evident. The only means
          by which they can exercise their right to give birth to a child who
          is not affected by the illness of which they are healthy carriers is to
          undergo a pregnancy by natural means and to then undergo a
          therapeutic abortion once a prenatal screening reveals that the foe-
          tus is affected by the condition [...] the Court [...] recognizes the
          anguish caused to the female applicant who unable to gain access
          to pre-implantation genetic diagnosis has as her only means of be-
          coming a mother having a child affected by the condition of which
          she is a carrier, and also recognizes the suffering provoked by hav-
          ing to choose to proceed with a therapeutic abortion to prevent
          such a pregnancy (Costa and Pavan v Italy, (Application N.
          54270/10) paragraphs 67-71)

    The Italian Government had contested the applicants’ arguments and
argued that the prohibitions in the 2004 Act of which they complained
were necessary to protect the health of the “child”, and of the woman as
well as the dignity and freedom of conscience of the medical professions
and the need to prevent eugenic practices. The Court was not convinced
of these arguments and noted that one could not claim that an embryo
was a “child”, and pointed out the contradiction of the Act’s protection
of the embryo which was the basis for the prohibition on access to pre-
implantation diagnosis and in-vitro fertilization for such couples while at
the same time allowing such couples to have access to therapeutic abor-
tion (Costa and Pavan v Italy, (Application N. 54270/10) paragraphs 61-
62). The Court also wondered why the Government did not think that
the perfectly legal practice of therapeutic abortion could not also lead to
64                                                            Tecnoscienza - 4 (1)

eugenic practices or interfere with the dignity and freedom of conscience
of the medical professions. In other words, there was a clear contradic-
tion between the arguments in favour of the 2004 Act and its prohibitions
and the freedoms contained in the Italian Abortion Act of 1978.
    Despite the clear exposure of the incoherence of the Act by the Court,
the Italian Government nonetheless entered an appeal against this deci-
sion. In February 2013, the Grand Chamber of the European Court of
Human Rights did not allow this appeal, noting that the Italian Law on
Assisted Reproduction was clearly incoherent and in breach of Article 8
of the European Convention on Human Rights and Fundamental Free-
doms. The decision of the Court of First Instance of August 2012 is now
the final word on the matter as far as the compatibility of the 2004 Act
with the European Convention on Human Rights and Fundamental Free-
doms is concerned. The Act has now been declared incoherent and in-
compatible with the European Convention of Human Rights and Funda-
mental Freedoms and the Italian Government is under an obligation to
address this. This decision strengthens the hand of those groups in Italy
campaigning for the legislation to be reviewed. The decision requires the
Italian Government to revise the 2004 Act to make it compatible with the
European Convention on Human Rights and Fundamental Freedoms.
However given the lack of willingness of successive Italian governments
to move in this direction it is unlikely that such a review process will
begin immediately. Nonetheless what one can guarantee that will contin-
ue to happen will be individual court challenges to the Act, which will
gradually have the cumulative effect of nullifying the Act’s prohibitions.
It will then be imperative even for unwilling politicians to act to introduce
a law which is both coherent and compatible with the European Conven-
tion of Human Rights and Fundamental Freedoms.


4. Conclusion: Reclaiming Reproductive Citizenship
   Through Ethopolitics
    This episode in Italian legal and political history displays a deliberate
attempt by political elites to resist a pluralist model of legal governance of
reproductive technologies in favour of a conservative model which fa-
vours embryo protection over the rights of women. This legislation was
passed despite the existing constitutional protections for women’s repro-
ductive rights as well as the right to reproductive freedom contained in
the Abortion Act of 1978. The political élite deliberately ignored these
freedoms in order to return to a traditionalist conception of Italian na-
tional identity based on a heteropatriarchal model of family formation. In
such a case we are faced with what Roberta Dameno (2004) has termed a
‘manifesto law’ which has for its real objective the upholding of a tradi-
tional idea of the family rather than attempting in any way to facilitate ac-
cess to assisted reproduction. The introduction of such a restrictive law
Hanafin                                                                    65
was facilitated by the existence of a relatively stable right-wing coalition,
which was willing to adopt the Roman Catholic Church’s position on this
issue in a wholesale manner for pragmatic political gain. The fact that op-
position parties of the centre-left aligned with the Church’s position al-
lowed for the easy passage of the legislation through both chambers of
the Italian legislature. This displays an unwillingness on the part of politi-
cal elites to engage in open deliberative consensus politics on issues of bi-
oethical controversy, particularly where Roman Catholic ethical values are
at stake.
    The series of court challenges to the 2004 Act and the continuing civil
society political organisation against it demonstrate the need for contin-
ued political action on the part of citizens to win back what were once
thought to be established rights such as a right to decide in relation to re-
production. This active citizen politics allows us to see how the abstract
control over Life exercised by the State in the name of religious ideology
can be contested successfully. As I have identified earlier in this article,
this form of citizen resistance falls into the model defined by Nikolas
Rose as ethopolitics. Such ethopolitical resistance has utilised the re-
sources already present in the Italian Constitution and the European Con-
vention on Human Rights and Fundamental Freedoms to enact a ‘biocon-
stitutionalism’, a means of undoing the paradigm in which citizens are de-
fined as objects of power but instead take active control of their lives and
win back a space of autonomous decision-making in relation to reproduc-
tive matters. Such a mode of ethopolitical intervention allows us to imag-
ine another politics of life which has been aptly defined by Didier Fassin
(2009, 49) as: “the power of life as such”.
    This model of ethopolitics is intimately related to an ethos of collective
action. Such a model stresses the need for continuous political engage-
ment to make real the merely declaratory nature of rights. It is an active
engagement with the promise contained in constitutional bills of rights to
enable citizens to access rights in reality. This is a continuous process. As
such, this recent episode in Italian political life has universal resonance in
that it demonstrates clearly the need on the part of citizens to resist in
contemporary regimes of biopower when their material lives are devalued
and their full citizenship is threatened in the name of a totalizing narrative
of Life. As Krause and De Zordo (2012, 148) have put it: “the struggles
around reproductive policies are articulated in juridical terms […] and
produce rights-bearing citizens pitted against each other […] These new
moral regimes generate social and political spaces for ongoing negotia-
tion”.
    In such a series of ongoing negotiations one comes to see that “anoth-
er politics of life is possible” (Fassin 2009, 44). In this campaign of etho-
political resistance to the 2004 Act an alternative more pluralist model of
community has emerged which is not based on defending the nation from
imagined enemies. This undoes the symbolic conservative notion of the
self-sufficient nation under attack from others seen as enemies. This
66                                                                    Tecnoscienza - 4 (1)

points to the possibility of an “affirmative biopolitics” which is not a
“politics over life” but a “politics of life” (Esposito 2012, 185). It is a poli-
tics which does not valorise an abstract ideologically rigid notion of Life
which restricts individual lives but which is driven by actions of individu-
al living beings acting in relation with one another.


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