Autore
Repetto, Giorgio

Titolo
"Non di sola Cedu ...". La fecondazione assistita e il diritto alla salute in Italia e in Europa
Periodico
Diritto pubblico
Anno: 2013 - Fascicolo: 1 - Pagina iniziale: 131 - Pagina finale: 166

In recent years, the right to health granted by Art. 32 of the Italian Constitutionhas undergone a significant shift. Along with the increasing process of Europeanizationof fundamental rights, which was boosted in 2007 in relation to the ECHR,both the individual and the social tenets of the right to health seem to have beenprogressively blurring. A powerful example of this trend is that concerning assistedreproductive technology (ART). A law passed in 2004 has regulated ART inItaly for the first time ever, albeit with a highly restrictive approach. Many claimsover time have challenged the constitutionality of the law and, among them,those affecting the bans on preimplantation genetic diagnosis and on heterologousassisted reproduction remain unanswered to date. The inaction of the ConstitutionalCourt and the unresponsiveness of the legislative branch have thereforepushed the affected couples to apply to the European Court of Human Rights,whose decisions have partially satisfied those claims, albeit with the effect of jeopardizingthe centrality of the constitutional right to health and its multi-facetedpotentialities. The right to respect for private and family life (Art. 8 ECHR) is indeedfocused on the individual side of health issues and mainly lacks any socialattitude, with the consequence that 'reproductive' rights (i.e. the right to have achild) are often overestimated with regard to woman's health rights. The inabilityof this approach to call into question the most critical aspects of the Italian legislationon ART has been demonstrated by the latest decisions of both the judiciaryand the Constitutional Court, that have made wide reference to ECHR caselaw without being able to solve the most debated problems. Given this situation,the author suggests that a preferable solution would be renewed focus on the full fledged enhancement of both individual and social attitudes concerning the rightto health.



SICI: 1721-8985(2013)1<131:"DSC.L>2.0.ZU;2-N
Testo completo: http://www.mulino.it/download/article/10.1438/75194
Testo completo alternativo: http://www.mulino.it/doi/10.1438/75194

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