Italy on Sunday 12th and Monday 13th of June will go to the polls in a referendum to vote on four motions modifying last year’s law 40/2004 on medically assisted procreation. Or rather, some Italians will go to vote, while others will heed the advice offered by many of their elected representatives – to abstain from voting. In an age where legislatures worldwide are faced with the challenge of catching up with scientific advances, Italy’s upcoming referendum has become far more than a decision between those in favour of the current law, or those who wish to change it. Instead it has become a bitterly contested argument about how the 21st century’s bio-ethical arguments should be legislated.

The law 40/2004 introduced last year by Berlusconi’s coalition government, approved with a bipartisan vote, has been controversial from the start. To its proponents, it is the first step in regulating a field that hitherto had been akin to the ‘far west’, or out of control. To its detractors, it is a law full of contradictions, too heavily influenced by the Catholic Church’s moral teaching to the detriment of the health of women seeking medically assisted procreation, as well as to scientific research.

In the face of considerable political opposition, Italy’s Radical party campaigned to collect over a million signatures calling for a referendum to cancel the legislation. The constitutional court ruled in January of this year that this was not acceptable. Instead voters will be offered the chance to remove or retain four of the most controversial clauses of the law. In substance these clauses limit the amount of embryos that may be created during a cycle of medically assisted conception; ban the storing of embryos; control what tests may be carried out on the embryo; ban the use of gametes from outside of the couple; limit the availablity of medically assisted conception to couples according to certain criteria.

The one thing that the country seems to be in agreement on is that the law 40/2004 is, in its current state, far from perfect. There are those like Mario Palmaro, Professor of bio-ethics and national co-ordinator of the group Vita e Verita [Truth and Life], who sustains the law is flawed because it doesn’t go far enough[1]. There are those like leader of the House of Deputies (and tipped by many to succeed Berlusconi as the natural leader of the right), Pier Ferdinando Casini who, while against the referendum, has said “no one is suggesting that it [40/2004]’s the best solution, and that it shouldn’t be bettered”[2].

It’s a complex area, but 40/2004 ignores the example of similar pieces of legislation worldwide, and appears to be particularly problematic. In some cases the law contradicts rights established elsewhere in the legal code. For example, according to 396/2000 a mother is guaranteed the right to anonynimity at birth. In 40/2004, in the case of births that result from medically assisted procreation the mother loses that right – though how medical workers or social workers will be able to differentiate between ‘natural’ and ‘artificial’ babies is unclear. In other cases there are measures that while not directly conflicting with current legislation, fail to take into account other laws. The most infamous of these being the regulation that stipulates that all embryos created in a given cycle of medically assisted procreation must be transferred into the uterus, even in the case where parents, through pre-implant screening, discover that an embryo carries serious genetic illness. The logic of the law here, that selection based on genetic criteria should be prevented, may be arguable, but in a State where legal abortion exists, the implications are that in many cases women undergoing medically assisted procreation will be forced to implant embryos, to develop a pregnancy to the point where they will choose abortion.

One of the chief motives behind the law, it would seem, has been to prevent scientific research on embryonic stem cells. The law though only bans research on embryonic stem cells created during the medically assisted conception procedure. It does not preclude research institutes from buying embryonic stem cells from outside the country, and experimenting upon them.