THEconsent to medically assisted procreation it can no longer be revoked after the fertilization of the egg. This is established by the forecasts of the new guidelines from the Ministry of Healthpublished in Official Journal and which clarify some measures of law 40/2004. The changes arise after the rulings of the Constitutional Court in 2023 and the Supreme Court in 2019. But let’s see in detail what they consist of.
The update of the previous lines replaces the 2015 decree. As stated, the aim is to adapt the contents “Given the ruling of the Consult no. 161/2023 […] with which the questions of constitutional legitimacy raised by the court of Rome relating to the art. were rejected. 6, paragraph 3, law no. 40/2004 regarding the revocation of the consent given to medically assisted procreation (PMA)”. This, together with that of Court of 2024 (No. 161) they represent its novelties.
Death or separation
In short, after assisted fertilization of the egg, consent to ART cannot be revoked. The woman, therefore, can also request the implantation of the embryo in the event of death or separation from your partner. “It must be represented that, after assisted fertilization of the egg, consent to ART cannot be revoked and the woman can request the implantation of the embryo even if the partner has died (Cass., 15 May 2019, n. 13000 ) or their relationship has ceased (Constitutional Court, n. 161/2023)”.
“Access to MAP – as stated in the guidelines – is extended to fertile couples carriers of transmissible genetic diseases, as well as to serodiscordant couples carriers of infectious diseases, such as HIV, HBV, HCV, in which the high risk of infection in fact it constitutes an obstacle to procreation; to couples in which one or both partners have resorted in the past to cryopreservation of their gametes or gonadal tissue to fertility preservation”.
The sentences
The two sentences that led to the changes in the guidelines are:
- Cass., 15 May 2019, n. 13000, according to which, the art. 8 of law no. 40 of 2004 relating to the status of those born with Pma also applies to “the hypothesis of post-mortem homologous fertilization which took place using the cryopreserved sperm of the father, who died before the formation of the embryo, who during his lifetime provided, jointly with his wife or cohabitant , the consent, not subsequently revoked, to access such techniques and authorize the wife or cohabitant to such use after their death”.
- There sentence no. 161 of 2023, with which the Court had declared the unconstitutionality of the revocation of the consent of a man who had separated from the woman. She had requested the implantation of the cryopreserved embryo even though she was no longer with her spouse.
