New

developments

of Italian law

about the use

of embryos

in assisted

procreation

 

                                                           by Guido Alpa

1. Is the embryo a person?

To provide a complete definition of the person it is necessary to identify the moment at which, from a legal point of view, the person comes into existence.

2004 is an important date for Italian - legal writers.  It is the twentieth anniversary of the publication of the Warnock Report[1], which started the debate in Italy about artificial procreation[2] and posed the problem of the need to define the legal status of the embryo and legislate to protect it[3].  It is also the year in which the Law on Assisted Procreation (Law No. 40 of 2004), was passed, after troubled debates, by Parliament, completely changing the intentions of the draft consolidated law presented to the previous legislature.  The new Law contains important rules on the use of the embryo[4] which, in a sense, provide a kind of constitution or statute of its rights for this “entity” which is so difficult to define.

 Consulting the calendar and making the conceptual link between the two events is not merely a feat of memory. Between the two dates is the whole history of the biomedical, ethical and legal debate in Italy, which got under way with a lively, open and fascinating discussion  – full of hope – in expectation of a legal enactment that would be satisfactory to all.  It then dragged on through doubts and second thoughts, as well as through many attempts at regulation, with more and less support; but few people would have imagined that the outcome (at least as it appears to be today) would be Law no. 40 of 2004. 

I will provide an analytical  description of  its provisions  in the following pages, but  I can anticipate that the new Law prohibits the assisted procreation of  single women and it deserves this proceeding only to married couples, it excludes the use of the semen  or  egg-cell of  donors, the creation of multiple embryos, the use of embryos  in order to achieve aim not connected with procreation, e.g. to cure illnesses, and of, to achieve commercial purporses.

 

2. Rules and solutions throughout Europe.

Only seven years ago,  surveys of assisted procreation in Europe  listed Italy among the countries in which techniques were practised to reach the goal of giving a child to people who could not have one naturally.  Many countries, Italy not among them, had, according to the survey, introduced legal rules to govern the means of reaching this goal.  The United Kingdom, the Netherlands and Spain had enacted legislation to permit even a woman of an age at which women are usually capable of procreation, to subject herself to treatment for artificial procreation. Our own situation was one of fact, not law, in which donation of the gametes and egg-cell, and ‘micromanipulation’ of the gametes were allowed.  Italy did not, according to the survey, practise the selective reduction of fertilised embryos for the purpose of preventing multiple births.  Nor did Italy permit research on embryos as an end in itself, but it permitted both the preservation of embryos by freezing them and the destruction of supernumerary embryos.

The situation in Europe generally is varied.

The German model (governed by the Gentechnikgesetz of 1990) is apparently  restrictive: the formation of em­bryos is only permitted for procreative purposes.  The principle of human dignity prevails, and applies from the moment of fusion of the nuclei of the cells of the fertilised ovocyte; the embryo is defined as the ‘human ovarian cell which from the moment of the fusion of the nuclei is capable of development’.

          The English model by contrast is apparently permissive: in the Human Fertilisation and Embryology Act 1990[5] the embryo is regarded as an object (rather than  a subject) and the logic of ownership is applied to it, so that the consent of both donors is required , in contrast with United States case law, in which there are judgments (such as Davis v. Davis) in which the embryo is regarded as an ‘unborn child.  In any event, less rigid restrictions are imposed under the English legislation: the embryo can be formed for purposes other than procreation, under a licence for research (as set out in Schedule 3 of the Act), in order to promote advances in the treatment of infertility, to increase knowledge about the causes of congenital diseases, or about the causes of miscarriage, to develop more effective techniques of contraception, to develop methods for detecting the presence of gene or chromosome abnormalities in embryos before implantation; and for such other purposes as may be permitted by future secondary legislation.

        The French model on the other hand appears to be a compromise; human dignity is protected from the beginning of life (Article 16 of the Civil Code); forming embryos for purposes other than procreation is forbidden; all forms of commercialisation of and experimentation on embryos is forbidden (Law 94-604 of 1994); the conception of embryos by means of in vitro fertilisation is forbidden; the keeping of them must not exceed five years; subject to consent, the embryo may be used for the artificial insemination of other couples; the couple need not be legally married; the mixing of seminal liquids is forbidden; medical operations on the embryo are subject to authorisation.[6]

        The fundamental principles common to all these models are that:

(i)     the embryo must not be treated as a thing,

(ii) the embryo’s identity as an individual precludes any operation upon it that would be unthinkable for a human being.

 

3. Principles and guides of the European Institutions.

        A further step towards the convergence of these models has been made by the intervention of the European institutions.  They have been engaging in discussions between themselves and with the various national legislatures and have been attentive to  the various organisations that have been formed and mobilised in each national civil society.  Essentially, they have been trying to act together in this field.  The Council of Europe and the European Parliament have concerned themselves particularly with the embryo.

In its Recommendation no. 1046 of 1986, the Council of Europe set itself the problem of restricting the use of embryos, permitting diagnostic, therapeutic and scientific use and excluding industrial or commercial use, as being contrary to human dignity.  This principle was repeated in its Recommendation no. 1100 of 1989.

The European Parliament expressed the same view, treating  the techniques of genetic engineering and in vivo and in vitro artificial insemination, by its Resolution of 16 March 1989; by another Resolution of 28 October 1993 it expressed an opinion against the cloning of human embryos; and by three further Resolutions it expressed itself, again restrictively, on human cloning (on 15 January 1998, 30 March 2000 and 7 September 2000).   Resolutions are merely persuasive, but Member States are invited to follow their prescription.    In any case, a clear principle was stated, in its basic meaning: besides  all the restrictions concerning the protection of human dignity,  the use of embryos is to be permitted if it is made for procreation and also for diagnostic, therapeutic or scientific purposes.

Subsequently the Council of Europe drew up a Convention on “Human Rights and Biomedicine” which was adopted in Strasbourg on 19 November 1996,  concerning the protection of human rights and the dignity of the human being in the context of the uses of biology and medicine.

This text is particularly important and worth examining in detail.

 The Convention consists of a preamble in which the precursors of the new legislation are mentioned: namely The United Nations’ Universal Declaration of Human Rights of 1948, The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, The European Social Charter of 1961, the International Treaty on Civil and Political Rights and the International Treaty relating to Economic, Social and Cultural Rights of 1966 , the Convention for the Protection of the Individual in respect of the Digital Treatment of Personal Data of 1966, the Convention on the Rights of the Child of 1989, the Recommendation on the development of a Convention on Bioethics of 1991 The preamble stresses the need for international cooperation in biology and medicine and the urgent necessity to guard against the dangers to human dignity arising from biology and medicine. In the text of the Convention, certain general principles are laid down, namely that the interests and the good of the human being should prevail over the interests of society or of science, that a code of conduct must be established for medical treatment (based on the consent of the person concerned); the right to have one’s private life is strengthened, here with reference to the protection of health and a prohibition against discrimination based on genetic characteristics; there are measures to safeguard persons volunteering to be used in scientific research; and finally there are rules on the extraction of organs for the purposes of transplants and a prohibition against making a profit from the use of any part of the human body.

           Among these rules there is already a provision on the embryo, which is to be the subject of a subsequent Convention.  Article 18 provides that when in vitro research on an embryo is permitted by law, the law must ensure adequate protection for the embryo.  The prohibition is also introduced, against creating embryos for the purposes of research.

           The Convention thus provides a general framework within which the signatory States must make their enactments; and to some extent it takes account of the various legislative provisions that have been being gradually enacted in the principal European States.  Among these it is worth  noting the French intervention, which is set out in two measures: Law no. 94-653 of  29.7.1994, renewing Articles 16.16-1 to 6-12 of the French Civil Code) and Law no. 94-654, enacted on the same date, on the use of the human body.  The former Law confirms the dignity of the person and the respect due to any human being from the beginning of life; it affirms the right of each person to his own body and restricts operations on the person and the human species; the second is concerned with transplants and assisted conception.  A lively debate has started among French legal writers about these innovations.[7]

           On 4 April 1997 the Council of Europe, at Oviedo, approved a more comprehensive Convention ‘for the protection of human rights and the dignity of the human being in respect of the applications of biology and medicine –a Convention on Human Rights  and Biomedicine ”.   Article 2 of the Convention proclaims that the human being takes precedence over all the interests of science or of society; Articles 5-9 codify the principle that consent must be obtained for any medical treatment; Articles 11-14 enunciate the principle of respect for the person in genetic research; they permit genetic modification but only for therapeutic purposes; Article 18 prohibits the creation of embryos for the purposes of research.

The European Parliament and the Council of Ministers on 6 July 1998 approved a Directive on the  legal protection of biotechnological inventions – which also relates to the embryo.  In the recitals it specifies, first and foremost, that technological patenting shall not relate to the human body, which shall include germinal cells and genes, and that human tissue may be used only if human dignity, public order and good practice are respected; then it establishes that in the case of human tissue, patenting shall only be only permitted if consent has been obtained from the person from whom the tissue has been taken; finally  the patenting of the use of embryos for industrial and commercial purposes is ruled out.  This prohibition is repeated in Articles 5 and 6 of the Directive.

By another Resolution of  September 2000 on Human Cloning the European Parliament specified that human dignity and the value of each person are the objectives of the Member States; that medical research is necessary but must be carried on within rigorous ethical and social limits; that the use of embryos for therapeutic purposes must be prohibited in cases where the use of stem cells would be possible; that human cloning, that is, the reproduction of cells from a person, with the same genetic heredity, must be prohibited; and that the techniques of artificial insemination must not produce an excessive number of embryos.

Finally, the  Charter of Fundamental Rights of the European Union, approved at Nice in December 2000 and now the European Constitution (art. II-63)  include in its provision as to the “Right to integrity of the person” a prohibition against ‘making the human body and its parts as such a source of financial gain’ and a prohibition against ‘the reproductive cloning of human beings’.

    Thus there are clear and precise restrictions upon the production, use and patenting of embryos.

But it is equally clear that the production of embryos – albeit not in excessive numbers -  is permitted by the EC authorities for diagnostic, therapeutic and scientific research purposes.

However, the new Italian legislation on the status of the embryo does not follow this process of convergence.  The Italian model is not informed by the principles of freedom and responsibility.  It is informed by restrictions and prohibitions.

 

4. The new Italian Law.

            The Italian Law of 19 February 2004, no. 40 contains ‘Rules governing medically assisted procreation’ and in reality is not intended to regulate the legal status of the embryo.  Its purpose is rather to “enable the solution of reproductive problems deriving from human sterility or infertility’.  The embryo is one of the means of solving these problems, which could also be solved in other ways.  But the Law is all about a particular method, because in order to reach the goal that the Law aims to achieve, it is necessary first of all to create an embryo, then to process it, and to establish the manner of its processing, and also to establish who must take the decisions inherent in the processing, and finally to establish the fate of the embryos that have not been used.

The Law gives some answers to these questions but does not resolve all of them.

The whole of Chapter VI is devoted to the embryo; but it consists mainly of prohibitions, so that the protection of the embryo appears indirectly: there is a prohibition against experimentation on embryos (Article 13 paragraph); a prohibition against research not intended for the protection of the health and for the development of the particular embryo that is the subject of the processing for the purposes of fertility (Article 13 paragraph 2); a prohibition against producing embryos for the purposes of research and experimentation (Article 13 paragraph 3 letter a)); a prohibition against any form of selection of embryos for eugenic purposes (Article 13 paragraph 3 letter b)); a prohibition against premature fission etc. of an embryo even for the purposes of procreation (Article 13 paragraph 3 letter c)); a prohibition (Article 14 paragraph 1) against the preservation of embryos by freezing (except for reasons of a sudden crisis in the health of the woman, pursuant to Article 14 paragraph 3) and against the destruction of an embryo (Article 14 paragraph 1); and a prohibition against the production of supernumerary embryos (beyond the number three) (Article 14 paragraph 2).

Although the embryo is mentioned many times in this Law, “embryo” is nowhere defined: one has therefore to refer to its technical, scientific definition to be able to assign a meaning to the term.

      From the mere enumeration of the provisions dealing with the embryo, it is apparent that this is not an organised piece of legislation: not only is embryo not defined as an entity, or even treated as equivalent to a person, but the rights that the title of Chapter VI would lead one to expect – ‘Measures to protect the Embryo’ – do not emerge from it.

The irrationality of this Italian Law on assisted procreation emerged only weeks after it had been passed, in a case brought before the Court of First Instance of Catania.[8] Two spouses had for a long time been trying to have children, using assisted procreation of a permitted type.  Several times the wife had been subjected to the painful and distressing procedure, but, mainly because of the husband’s low fertility and also because of physical complications in the wife’s reproductive organs, these attempts had failed.  The spouses had then discovered that they were both afflicted by thalassemia, an hereditary disease.  During the course of their latest attempt, the Law on assisted procreation came into force; and, as indicated above, it is very restrictive.  Since the assisted procreation procedure had been started and consent for its continuance had also been signed, together with the declaration that they had been properly informed, the spouses applied to the judge for an emergency order that the doctor at the medical centre to which they had gone to have the operation, do not implant diseased but healthy embryos in the wife’s uterus.  However, the Italian legislation does not permit either preservation of the egg-cells by freezing, or their destruction: all the egg-cells produced in the course of the operation must be implanted in the uterus of the would-be mother, so that it is not possible to sort out the healthy embryos from the diseased ones and the doctor is obliged to implant the diseased ones in the uterus also.  Nor is it possible, for spouses who have given their informed consent , to revoke their agreement.  Consequently the judge refused to make the order applied for, and the mother is now faced with a difficult choice: either to continue the pregnancy, thus running the risk of bringing a child with thalassemia into the world, or to have an abortion, always supposing that the requirements for obtaining it were satisfied.  Abortion, in the Italian legal system, can be freely effected if within three months of conception, but after this time limit abortion can be effected only for serious reasons of the health of the mother, not that of the foetus (Law n.194/1978).

            The judge, in his reasoned judgment, examines the rights that are in conflict, and refers to the Italian Constitution (but not to the  Charter of Fundamental Rights signed in Nice and not to the provisions of the international conventions).  The conflicting rights in the case, as described by the judge, are: the right of the embryo to life; the right of the mother and father to procreation; and collective health for the good of society.  So, in this conflict of rights, the judge, treating the embryo as equivalent to a person (even though the law does not explicitly so provide), found that the embryo’s right to be born prevailed, and that neither the mother nor the father had the right to choose between the embryos produced from their bodies, or to permit only the healthy ones to complete their development.

            Thus, if the child is born, he will not be able to claim damages against his parents, or against the doctor, because all of them have acted in accordance and compliance with the law.  Even if it were possible to overcome the problem of the existence of a right to be born healthy, and the problem of the causal connection between the event of his birth and the disease (the child would not have been able to be born except in those conditions, otherwise he would not have existed), the child would still have no right to damages because the conduct of the parents and the doctor would have been lawful.  Possibly, the legislature could be sued in damages for not having allowed diseased embryos to be cured.

            The question is complicated by other questions concerning human life, such as, specifically, the birth of genetically diseased children.  We are in a difficult area of the law, in which judicial findings sometimes conflict with each other and sometimes differ from ethical assessments.  The ‘affaire Perruche’, decided by the French judges, is a typical example.

 

 

5 .  Does a person have the right to be born healthy?

 

The affaire Perruche, decided by the French Cour de Cassation, sitting in plenary session on 17.11.2000, is one of the “problem cases” on which learned legal writers have tested their most sophisticated techniques of imaginative interpretation.  It is indeed a case that lends itself to an enquiry into how the resources of the law answer the requirements of justice, in a society which in one way is multiplying the demands of the person and in another is preoccupied with mediating between rights and interests that are in conflict with each other.  But the case also lends itself to a discussion as to whether all the problems of the person can (or should) be made the subject of legislation and if so, which models (Italian or foreign) are to be considered satisfactory.  There are  models that claim an absolute respect of  the techniques of formalism without any reference to “values” and others that are ready to incorporate into legal rules, fundamentally assumed ethical and moral values.  In its peculiarity, and because of the dramatic twists it presents, the case also lends itself to an enquiry into how to practise the ‘art of judging’ and to a comparison of the reactions of the judiciaries of different countries when faced with similar facts.

The procedural developments of the case may be reconstructed by reading the account of Consigliere Pierre Sargos[9], the pleadings of the Advocate General to the  Court of Cassation Jerry Sainte-Rose[10] and the numerous commentaries by learned legal writers[11] .

 Greater problems are posed by the extreme brevity of the reasoning in the judgment of the Cour de Cassation  sitting in plenary session, which keeps the main function of checking the legal correctness of the judicial reasoning.

Here therefore are the main events in the proceedings:

(i)                 by its judgment of 13.1.1992, the Tribunal de Grande Instance d’Evry found that a doctor and a pathology laboratory were liable in damages to a pregnant woman, who had applied to them find out whether she had the antibodies of German Measles.  The court found that both were in breach of contract for having given her incorrect information, which convinced her that it was possible to carry the pregnancy to term without damage to the not-yet-born child; it found further that damages should be paid both to the child, for damage to his physical integrity, and to the parents;

(ii)               by its judgment of 17.12.1993, the Court of Appeal of Paris, to whom the doctor had appealed, on the grounds that the error was to be attributed, in his submission, only to the laboratory, held that the doctor also was in breach of contract (for breach of an obligation to provide all the means at his disposal) and that he was jointly and severally liable with the laboratory and with both their insurers, to the mother and to the father, since the mother, in reliance on the erroneous results, had decided not to terminate the pregnancy, whereas she would have decided to terminate it in the event of danger to not-yet-born child, which intention was well known to the doctor;

(iii)             the pronouncement in the judgment at first instance that the defendants are jointly and severally liable to the parents becomes unappealable, since it amounts to res judicata;

(iv)             the Court of Appeal does, however, reverse the pronouncement in the judgment at first instance, concerning liability to the child: according to the appeal judges, there is no chain of causation between the damage suffered by the child and the  wrongs (torts) found to have been committed: because the effects of the German Measles did not derive from the error of the doctors but rather from the fact that the mother had contracted the illness at the beginning of her pregnancy; and because the mother’s decision to carry the pregnancy to term could not, of itself, amount to an actionable wrong against the child, recoverable in damages, since the effects of the German Measles were constitutionally inherent in the person and absolutely irreversible;

(v)               when seised of the question, the first section of the Cour de Cassation, in its judgment of 26.3.1996, reversed the judgment given on appeal, only on this question of causation, holding that the wrong diagnosis led the parents to believe that the mother was immune to German Measles and that the child had consequently no chance of suffering the devastating consequences of the German Measles; the case was therefore sent back, on the single point of the causal connection, to the Court of Appeal of Orléans, which, however, by its judgment of 5.2.1999,  refused to follow the principle of law declared by the Cour de Cassation and decided that there was no causal connection between the tort of the doctor (and the laboratory) and the damage suffered by the child;

(vi)             on a fresh appeal to the Cour  de Cassation, the Cour, now sitting in plenary session, held:

a)      that the wrongs (torts) which the doctor and the laboratory were held to have committed in their performance of the contracts entered into with the pregnant mother had led her to rely on the exactness of the information and on her own immunity and thus had prevented her from exercising her own right to terminate the pregnancy in order to avoid giving birth to a handicapped child;

b)      that the child was entitled to obtain compensation for the damage resulting from his handicap and caused by the torts found to have been committed.

(vii)           the parties were referred to another appeal judge to establish quantum of damages.

 The extreme brevity of the text of the judgment, which consists of a few lines of reasoning, does not satisfy the learned legal writer, though he is aware that  French judgments are concise.  But the legal logic with which the Court arrived at the result is one thing; its effect is quite another.

 In order to examine the judgment it is necessary to dismiss certain matters, even though they are worth considering: the placing of the judgment in its context of learned legal writing and case law, for example, and also in the cultural context of the time.  Then, there are doubts about the legislation referred to in it (Article 1165 of the French Civil Code, on the effect of a contract on third parties, and Article 1382 on unlawful wrongs (torts)), and then again about the failure to reconstruct the causal connection, though it was evidently held to have existed; moreover the judges of legitimacy say nothing about the nature of the damage for which they say compensation should be paid.

It is essential to limit the scope of the enquiry.  Considering the circumstances in which the case arose, it is scarcely necessary to point out that the damage was neither inflicted directly by the doctors on the physical integrity of the pregnant woman, who had contracted German Measles before submitting herself to the tests, nor was it inflicted directly on the foetus, to whom the German Measles was transmitted by the mother, nor was it damage suffered by the parents for non-termination of a pregnancy resulting from errors in sterilisation of the husband or the wife.  Of all of these, our case law by now has copious examples.

 

6. Italian case law on medical malpractice and assessment of damages.

 The case is about circumstances well known to the Italian observer, since our national experience by now has registered numerous cases bordering on the facts of this case.[1] In its judgment of 16.2.2001, no. 2335, the Italian Court of Cassation found in favour of compensation for the physical and psychological damage suffered by a new-born baby on the occasion of a caesarean section, for asphyxia and subsequent episodes of apnoea, with a consequent loss of working capacity and loss of amenities of life, and also for the loss and damage suffered by the parents in terms of expenses and moral suffering,; the liability of the doctor was founded on negligence (colpa lieve) pursuant to Article 1176 of the Italian Civil Code.

In its judgment of  9.8.1985, the Court of First Instance of Padova found that compensation was payable for (extra-contractual) loss and damage suffered by a mother because a doctor had failed to inform her that an operation to terminate her pregnancy had been unsuccessful; and similar decisions were given by the Court of Appeal of Bologna in its judgment of 19.12.1991, and the Court of Cassation in its judgment of  8.7.1994, no. 6464 .

Other decisions found that  parents  could sue in damages, for medical malpractice, as a consequence of wrong diagnosis, to inform the mother about the malformations of her unborn baby, which led to the fundamental impossibility of her procuring an abortion; the judges highlighted the fact that it was the mother whose interests were infringed by the damage: namely her right to a free choice to terminate the pregnancy: but it is thought that an action brought by the father would also be admissible, since he would have been involved, if not in the mother’s decision, at least in its shared consequences.  Some  judgments  found the liability of the   doctor  who had not informed the parents of the fact that their foetus had malformations and would be born with Down’s Syndrome.

. However, in similar cases the Court of Cassation has found that for the purpose of proving a causal link between the conduct of the medical professionals and the damages complained of by the mother (or both parents) it is necessary to prove that the conditions laid down by law for termination of pregnancy are fulfilled.  The infringed right  is the right of the mother to terminate the pregnancy.  In the Court of Cassation’s judgment no. 12195 of 1998 the compensation for damages suffered by the father is defined as ‘indirect damages’.

In its judgment of 23.2.1995, the Court of First Instance of Cagliari awarded (contractual) damages to a mother for having given birth to a healthy but unwanted child following an unsuccessful operation to terminate the pregnancy.

Further, in its judgment of 20.10.1997, the Court of First Instance of Milan awarded (extra-contractual) damages to parents on the grounds that, following an incorrect operation to sterilise the husband, their right to conscientious and responsible procreation had been infringed,.  It should be stressed, however, that the Court considered the damaging event to have been not so much the birth of the child – since life is an immeasurable good, and bearer of joy to the parents, and such as to compensate for the drawback of having to maintain a child – but rather the infringement of a right of personal freedom belonging to the parents.  The joys of paternity and maternity likewise provide compensation in themselves, of which the judge must take account when evaluating the compensatio lucri cum damno (set-off of gain against loss and damage).

 

 

As to the nature of the damage, case law is divided.  It is in any case another question that is beyond the scope of this article.  These are not the important problems for the purpose of understanding the innovation in the judgment of the plenary session of the Court of Cassation in the affaire Perruche.

 

7. New challenges concerning the affaire Perruche.

The innovation consists in the locus standi acknowledged by the judgment to exist in the child.  Of course, the innovation is relative, given that the first judgment on the merits in the same proceedings had already found in favour of damages payable to the child, as had the first section of the Cour de Cassation.

The case can be stripped down to its essentials and, taking it as a hypothesis for teaching purposes, and overstepping the boundaries of its facts, we can summarise it in a few questions. The parents’ right to damages, agreed to by the Italian judges with the remarks and limitations described above, can be taken as read; but one wonders:

a) whether from the methodological point of view, the problem can be exhausted in the discussion on the existence of the causal connection, or whether there can or must be other factors in the evaluation;

b) whether, under the rules of law, the child is entitled to claim damages and

c) for what loss and damage and

d) against whom.

At this point further questions arise:

a)      whether the child can claim in damages against the doctor and the laboratory on the grounds that he came into the world handicapped, even though that condition was not caused directly by the defendants but only by a combination of two factors, namely the error in the information that would otherwise have determined the decision to terminate the pregnancy and the mother’s continuance of the pregnancy in ignorance of that error;

b)      whether a child could sue his mother for having knowingly decided to carry the pregnancy to term;

c)      whether he could claim damages from the father as well as the mother.

 

Probably the only case recorded in Italy that is really relevant to the Perruche case is the much-discussed one concerning a baby girl with hereditary syphilis, long ago decided by the Court of First Instance of Piacenza on 31.7. 1950 [12].

This is because in all the judgments so far mentioned and in others that could be mentioned, damages are always claimed by one or both parents but not by the child. 

The Court of First Instance of Piacenza awarded damages to the child, overcoming the problem of the causal connection with these words:‘life is a great gift, an immense gift.  Now, transmitting by the act of generation (…) a diseased condition which this great gift transforms into an immense unhappiness is unlawful, contrary to the law, and is not the proper conduct of a person on whom the legal system imposes a duty to recognise and elevate this gift’. 

The strength of the criticism of most commentators, with the exception of a few favourable opinions, has greeted this judgment has been sufficient ever since to dissuade children born handicapped from starting actions in damages against their parent  It should however be pointed out on the facts, that the infection of syphilis had been transmitted from the father to the mother and that she was possibly not  aware of it and in any case (at the time) did not have the right to an abortion .We have to consider that abortion is legal in Italy only since 1978.

            The similarities of the French case and the Italian  case  decided by the Court of Piacenza, mentioned above,  are not completely coincident.

            The Perruche case also was an action in damages, but the action was not against the parents but against the doctors and the laboratory, so that it is not possible to pose the question whether parents are immune from being sued by their children for having caused them to be born in a disadvantaged condition, or the question whether damages should not be awarded because  that would infringe the right of the parents to procreation or the right of the mother freely to chose to terminate a pregnancy.

 Also if the old Italian case was somewhat different from the affaire Perruche , but  the question of the causal link remains open.

 The alternatives, simple but obvious, are ‘being’ and ‘non-being’: living with the affliction of an incurable handicap or not being afflicted by it and consequently not being born. The choice between these alternatives, where there is medical liability, does not arise in both cases, the old Italian and the new French ones, because the child has been born and is condemned to live in disadvantaged conditions .

The words of the judges of the Court of First Instance of Piacenza, at the distance of half a century, still seem (extraordinarily) up-to-date, even though, strictly speaking, they do not offer an adequate reasoning in the strict sense.

Today those judges, pilloried by some,  respected but criticised by almost everyone[13] would enjoy quite another sort of consideration.

To resolve the matter, are we to follow a line of strict legal reasoning or a line which accommodates the principles underlying that reasoning?

It is possible to reach opposite solutions using the formal method or using the reasoning groundend on values.

On strict legal reasoning, it appears clear that ‘the concept of life as of incomparable value’ is a non-legal concept ‘superimposed on a purely formal concept’.  If we distinguish between the moment of the damaging act and the moment it shows its consequences, it is possible to overcome the difficulty of the causal connection even in rigorously formal terms.[14]  But these considerations apply to the question of extra-contractual liability.  If the question is put in the contractual context, either we must consider that the mother entered into a contract with the pathology laboratory for diagnostic services and a contract with the doctor for medical services, and that both contracts can be construed as including an obligation to protect the third party (the foetus); or we must consider that the legal effect of these contracts is specifically that services are to be provided in favour of the foetus (whose condition in the uterus is to be ascertained).  In either case, it is impossible to deny that the interests of the foetus-to-be-born have a bearing on the matter, just as it is impossible to deny that the absence or inexactitude of information affect the foetus at least indirectly.  Thus, the problem that there can be no right not to be born does not arise, nor does the question whether there is a right to be born healthy: the problem that arises is that of the difficult condition in which the baby finds itself when born, by reason of the absence or inexactitude of information: the baby has been born in the only condition in which it could have lived, that is, afflicted with a handicap.  The doctors’ error is mirrored in the tragic condition of the child that has been born.

To be sure, if one makes a distinction between factual and legal causality, it is apparent that the error of the doctors was a contributing cause (concausa), but not the only cause (the mother could have decided not to have an abortion).  If the doctors had not erred, the admitted fact of the child’s tragic condition would not have given him grounds to sue his mother, because there would have been no fault (colpa ) attaching to her; she would only have freely made the choice to procreate, which choice is not open to criticism and should not be governed by the possibility of a claim from the child in damages.

If on the other hand take the line accommodating the principles underlying the legal reasoning, we may agree with those jurists who remarked that the idea that a birth is always a ‘precious gift’ (a recurring theme in judgments in decided cases), ‘highlights the value of human life and its right to be protected in such a way as to obscure the necessity to evaluate the connection between the event of the birth and the person of the parent: which connection can make one see the birth as an event whose significance is not unequivocal – but as the bearer on the one hand of “gifts” and on the other of difficulties’; so that ‘to connect birth and motherhood in a single fate and a single estimation really adds to the sort of confused  priorities with which acknowledge the value of human life only if it is “wanted”’.[15] 

The parents therefore can be acknowledged to have suffered loss of a capital nature as well as biological and natural damage in the strict sense; since damage cannot be duplicated, the child can only be acknowledged to have suffered moral damage.

Is this a just and equitable decision?  Or is it one that holds doctors, hospital managers and insurers, all of them persons subject to the law, liable for a loss that should ‘lie where it falls’ or at least be absorbed by the insurance system?  How far should we follow the logical and formal line of argument?  And if we do not follow it, are we not stepping tout court into the quicksands of ‘free law’?

Pietro Rescigno, commenting the old Italian judgement,  concluded his essay on the question of loss and damage caused by procreation with the penetrating observation that ‘.. . the theme of the not-yet-born child, in the peculiarity of this case reveals the law’s incoherence.  It is this contradiction that explains the painful uncertainty of the judge and the bitter anxiety of the reader’.

But it is precisely with that painful consciousness and from that point of departure that we must start the reasoning again today.


 

[1] The  Warnock Report , drafted by the “Commission on Human Fertility and Embryo Research, 1984, provided a frame of ‘recommendations’  reported in Procreazione artificiale e interventi nella genetica umana, Atti del Convegno di Verona 2-3-4 October 1986, (Padova, 1997) p 357; its story is referred by its Chairperson, Mary   Warnock, in her  Introduction to A Question of Life London, 1985.Mary Warnock, now Baroness Warnock, has continued her involvement in the problems of bioethics and the legislation dealing with the techniques of artificial procreation.  She has published explanatory books and in some ways  has altered her original opinions: see Making Babies:I there a Right to Have Children, London, 2002

[2] This debate came to a head at a conference in Genoa, of which the proceedings were collected by G. Ferrando in La procreazione artificiale tra etica e diritto, (Padova, 1987); see also Ferrando’s earlier Procreazione  artificiale: verso una regolamentazione per legge, in Pol.dir., 1986, p 501 ff..  The contributions of Stefano  Rodotà defined the boundaries of the debate, made intellectuals think, and stimulated legal writers to form opinions: Per un nuovo statuto del corpo umano, in Bioetica, edited by Di Meo and Mancina, (Roma-Bari, 1989), p 41 ff.; Questioni di bioetica, (Roma-Bari, 1993); Tecnologia e diritti, (Bologna, 1995).  During the same years see A.Trabucchi, Procreazione artificiale e genetica umana nella prospettiva del giurista, in Riv.dir.civ., (1986), I, p 495 ff.; Patti, Verità e stato giuridico della persona, ibid., 1988, I, p. 231 ff.; Ascone e Rossi Carneo, La procreazione artificiale: prospettive di una regolamentazione legislativa nel nostro paese, (Naples, 1986).  A comprehensive reconstruction of the situation is offered by Lenti, La procreazione artificiale. Menoma della persona e attribuzione della paternità, (Padova, 1993).  On the subject of biotechnological research v. the essays collected and introduced by C. M. Mazzoni, Etica della ricerca biologica, (Florence, 2000).

[3] See especially the proceedings of the conferences organised by Politeia: La bioetica. Questioni morali e politiche per il futuro dell’uomo, edited by M. Mori, (Milan, 1991); Quale statuto per l’embrione umano. Problemi e prospettive, edited by M. Mori, (Milano, 1992); and the essays collected in Bioetica.  Rivista interdisciplinare, 1, 1993.

[4] On the debate in the Italian parliament and the questions that preceded the text of the Law as definitively approved, there is an abundant literature, mostly circumstantial, published in the press and on the Internet; but see the essays collected in Testimonianza.  I diritti dell’embrione, (2000), no. 412.

[5] On which see  Douglas, in Family Law, 1991, p. 110 ff.

[6] On this point see Carusi, Le nuove leggi francesi sulle biotecnologie, in Riv. dir. Civ., (1996) II, p. 537 ff.

[7] For the lively debate among French legal writers see e.g. B. Mathieu, La dignité de la personne humaine: quel droit? quel titulaire?, in Dalloz, (1996), chron., 281; C. Philippe, La viabilité de l’enfant nouvaeau-né, ibid., chron., 29; J. Hauser, Un nouveaù-né: l’enfant conventionnelle?, ibid., chron., 181; Ch. Byk, La recherche sur l’embryon humain, in Sem. jur., (1996), 3949.

[8] Ord. (judgment of) 3 May 2004

[9] In Sem.jur., 10438, (13.12.2000), no. 50, p 2293 ff.

[10]Ibid., p 2302 ff.

[11] E.g. Chabas, Note, ibid., 2309

[12] In Foro it., (1951) I, 987

[13] See the careful reconstructions of the history of this in Patti, Famiglia e responsabilità civile, (Milano, 1984), p 112 ff., where there are references to the German and American experiences; Zeno Zencovich, La responsabilità da procreazione, in Giur.it., (1986), IV, 113, with further comparative references; and for other instances compare von  Bar, The Common European Law of Torts, I, (Oxford, 1998), 581 ff.; and Un bambino non voluto è un danno risarcibile?, edited by Ant. D’Angelo, (Milano, 1999), where there are essays and opinions by Lupoi, Canale, Busnelli, Lipari, Ruffolo, Cendon, Passio, Brunetta d’Usseaux, Ant. D’Angelo, Bregante, Ferrando, De Matteis, Spallarossa and Monateri)

[14] According to Rescigno, Il danno da procreazione, in Riv.dir.civ. (1956) , I, 634.

[15] Rescigno, op.cit.