On December 4 last year, four couples checked into the Sandro Pertini hospital in Rome for in vitro fertilization. Under Italy’s strict reproductive laws, which ban donations, they were implanted with embryos grown in a laboratory from eggs and sperm harvested from each couple the week before.
Two of the prospective parents, both psychologists in their 40s, were in for the shock of their lives. Tests after the procedure showed they were expecting twins—but the babies were not their children.
They had been implanted with one of the other couple’s embryos because, according to the hospital, “the last names were only different by the last three letters.” A technician made a simple, life-changing mistake and misread the test tubes.
Italy’s reproductive laws have been among the strictest in Europe for the last decade after a landmark parliamentary bill in 2004 banned the use of donated eggs and sperm or the freezing eggs or embryos. The strange reality is that if the couple had actually wanted to use someone else’s eggs or sperm to create a baby in December, they could not have done it legally in Italy.
That changed last week when the Italian high court overturned several contentious restrictions in the reproductive law known as “Law 40.” Before the high court decision, in vitro fertilization with donated eggs or sperm or both was a crime subject to a fine of up to €600,000 for the couple, and a potential loss of license for the physician and hospital that carried it out. But “Law 40” still has a few glitches. Perhaps stranger yet, if the errantly pregnant mother now chooses to carry the twins to term and give them back to the rightful parents, she could face a jail term of up to 20 years in prison because both commercial and altruistic surrogacy is still a crime in Italy.
Even though the hospital made the mistake, she would be breaking the law if she gave them back. “There is no doubt about it,” says Lorenzo D’Avack, a lawyer and vice president of the National Bioethics Committee. “The Italian law clearly states that the mother is the woman who gives birth.”
The hospital that made that error is one of the city’s leading gynecological centers and it will undoubtedly benefit from a boost in business now that Italy’s reproductive laws have been loosened.
Prior to the 2004 ban, which conventional wisdom suggests was part of a pact between Silvio Berlusconi and the Catholic Church to secure the Christian Democrat vote ahead of elections, Italy was considered the Wild West of fertility treatment, with more per-capita multiple births than anywhere else in Europe or in the United States. Thousands of childless couples came to Italy for fertility treatments, creating a cottage industry out of reproductive tourism. There were no limits to the number of embryos that could be implanted into any given womb. And there were few checks about whether the womb in question belonged to a married woman, a lesbian or a surrogate mother who happened to be renting it out. Italy had a triplet birth rate of 7 percent, compared to less than 1 percent in the rest of Europe. In 2000, a 31-year-old Sicilian woman on high-dose fertility drugs gave birth to octuplets, of which four eventually died. In 1994, Severino Antinori, Italy’s leading gynecological pioneer, successfully assisted a 62-year-old woman to become the world’s oldest mother with her husband’s sperm and donated eggs.
Since the ban, Italians have been the ones traveling for the purpose of procreation. In 2012 alone, an estimated 4,000 couples left the country for fertility treatment, according to the Luca Coscioni Association, which advocates scientific research and reproductive rights. In Spain, on average, 62 percent of all fertility patients are Italian. The Italian government agency that registers births does not enquire about the nature of the conception when babies are born, so it is impossible to know just how many babies born each year were conceived in labs outside of Italy. But of the 73,507 registered couples that sought out restricted fertility treatment inside Italy, only 15,467 pregnancies occurred, but more than 13 percent ended in miscarriage, according to Italy’s health ministry. Now, with the lifting of the ban, married couples will be able to use donated eggs and/or sperm to have babies and clinics that performed the procedures against the law can now do it in the open. “It was an outdated ban that penalized and discriminated against couples who deserve the right to procreate,” said Filomena Gallo, the lawyer who successfully argued the law’s validity on behalf of more than a dozen couples in Italy’s high court. She based her argument, in part, on a 2012 ruling by the European Court on Human Rights which said Italy’s ban on the use of donor eggs and sperm was unconstitutional.
Not everyone is cheering the news that having babies just got easier. “The framers of the Constitution must be rolling in their graves, after an interpretation that permits assisted fertility via laboratory cocktails made of the genes from multiple parents,” Maurizio Sacconi, a senator with the New Center Right political party who was once a Berlusconi ally, said in a statement after the high court ruling.
Catholic newspaper Avenire also attacked the decision as a threat to the essence of the family and a return to the “far west of fertilization,” quoting conservative politician Olimpia Tarzia of the Ethical Responsible Politics party, who said the lifting of the ban would “dramatically favor a business based on selling the skin of women and children.”
On June 18, the court will meet to consider the remaining points of the law that are still in place. While the use of donor eggs and sperm are now allowed for heterosexual married couples, it is still not possible for single women, gay couples or women over child-bearing age to seek advanced fertility treatment in Italy.
Surrogacy also remains illegal, and it is still prohibited to do genetic tests on embryos before they are implanted into the womb, even for couples with hereditary genetic disorders (though it is legal in Italy to abort a fetus with genetic disorders after it is implanted.) “The law has been gutted,” said Italy’s Health Minister Beatrice Lorenzin, warning that she did not want Italy to return to the days when it was the Wild West of fertility treatment. “We need a road map to find the middle ground. Now it requires parliament to intervene so people don’t go crazy making babies.”