ABSTRACT: The draft bill, presented by the deputies of the European Federalist Group, proposes a control of human artificial insemination, with a regulation on the part of the State only in those situations which give origin to rights and duties toward a third party, leaving the choice of the ways in which to procreate to the spouses.
(Chamber of Deputies, Xth Legislature, Draft Bill n. 3490, presented on the 29th of December 1988)
HONOURABLE COLLEAGUES! - In a field such as the one relative to the relations between spouses, their choice of procreating and the manners in which to do so, or even to the choice on the part of the single woman to procreate, it is appropriate for the State, with its laws, to intervene as little as possible, regulating only those situations which can give origin to rights and duties toward a third party. This is the case of human artificial insemination, the choice of which practice is still, and must remain, the exclusive competence of the person or of the persons who make it - be it the single woman or the couple - without analysing the reasons, the feelings and the desires that bring the person to take a similar step toward procreation.
For the moment Italy lacks a legislation on the subject. The bills presented during the III and IV Legislature (Gonella Giuseppe e Marco, III, n.585: "Prohibition of artificial insemination and juridical regulation of it"; Riccio, Russo Spena Raffaello, Funzio, III, n.1017: "Illegality of artificial insemination and juridical regulation of it"), all inspired by the most reactionary principles of prohibition, and with the ambition of transferring the principles of Catholic moral theology and the principles codified in Canon Law to the State legislation, have all been dropped. Nor has the attempt made by senator Franca Falcucci (Cf. draft bill by senator Franca Falcucci, Senate, IV, n.41, articles 159-160) to include norms concerning heterologous artificial insemination, accused of being "a new sort of crime...for the serious consequences that such event can have on the family" in the reform of family law had any success.
There is a legislative gap in our country today, which could well be an extremely positive fact under the aspect of the non-interference of the State in the private and personal matters of its citizens, if however the practice of artificial insemination, widely diffused, did not already give origin, and would not give origin in the future, to misuses which may be harmful precisely for the persons who resort to it.
No reliable data are available on the diffusion in Italy of artificial insemination, but more than one source points to the fact that physicians perform dozens or even hundreds of them in various Italian cities, and that the persons who have resorted to it are already thousands. In May 1980, at the faculty of Medicine of the University of Bari, a convention was held on the topic "The Europeans and their children", documenting thousands of situations involving single individuals or couples who had resorted or intended to resort to artificial insemination. If all statistic data are extremely vague for Italy, the same is not true for other countries in which artificial insemination and the relative controlled structures have been operative for many years. An in-depth essay on artificial insemination by Father Jean-Marie Moretti on the December issue of the French Jesuits' magazine, Etudes, provides the following news: there are about fifteen sperm banks in France, Canada and United States, 19 in Great Britain,
5 in Switzerland and 2 in Spain. It can be estimated that children born with heterologous artificial insemination - that is, with a donor other than the husband (IAD) - (until 1979) amount to over 30,000. In France there are 14 centres for the study and preservation of sperm and one centre for the study of fertility since 1972-1973. From 1973 to 1978 there have been 7,165 applications for IAD, 4,523 women have been inseminated, there have been 1,852 pregnancies, 1562 births and 290 false pregnancies. In 1978 only there have been 2,400 applications, which have corresponded however only to 500 donors.
These data that concern nearby France, give a comparative idea of the proportions of the phenomenon, which could be applied, with a reasonable approximation, also to the Italian situation. On the other hand we need only think of the number of sterile marriages, which has been ascertained to be 14-15% of all marriages, and that the origin of infertility relies, according to consolidated medical researches, in male sterility for 40-50% of all cases of infertility. However, this percentage of forced sterility, of male origin, is and could be interested by artificial insemination procedures if a series of sanitary and legal guaranties were enacted, which can be ensured only by a regulation, on the basis of what has already been achieved by the legislation of some European states and some states of the U.S.
Such is the reason that induced us to present a regulating draft bill, in spite of the mistrust toward any form of public interference in matters that strictly concern the personal sphere. Artificial inseminations are now performed regularly in Italy, but outside of a specific normative context; this is why both commercial misuses and the absence of strict controls and sanitary guaranties are not rare. A practice performed in the way it is performed today becomes prey of the market, a thing which, owing to the delicate and reserved nature of the intervention, inevitably leads to speculations, without contextually imposing those legal guaranties that a procreation of this kind calls for. The regulation we are suggesting, therefore, is minimal and corresponds to the directives expressed also at an international level by a "recommendation project on artificial insemination of human beings", voted by the Council of Europe in Strasburg on the 5th of March 1979.
In the exposition of the reasons that lead to that deliberation of the Council of Europe, the following can be read: "The artificial insemination of human beings is currently performed in many member States in order to put a remedy to the absence of children in marriages, owing to the sterility of the husband or to a total hereditary anomaly liable to be transmitted to the child or to his descendants in the case of procreation. Given the fact that the number of childless couples is high, it has become extremely frequent in some member States to resort to artificial insemination, owing on the one hand to the difficulties in obtaining adoptions, and on the other hand to the evolution of technique and customs. This practice, which can solve a family problem, poses also moral, juridical and medical problems that range from the gratuitousness of sperm to the juridical status of the child conceived with this means".
"Only few member States have adopted dispositions on the subject and, when these exist, deal only with the problem of filiation. It is clear that in a near future, a certain number of member States, especially those in which artificial insemination is practised frequently, will elaborate a specific legislation on the subject to make up for the injustices that issue from the application of the general legislation on filiation, and to prevent any form of malpractice".
"Because the aim of the Council of Europe is that of achieving a closer union between its members, especially by means of a harmonization of the legislations concerning matters of common interest, the committee of ministers addresses a recommendation to the governments of the member states which will adopt a legislation on artificial insemination of human beings and relevant subjects, inviting them to conform their new legislation to the rules indicated in this recommendation, in order to achieve a harmonized regulation of the problem in Europe".
The inspiring concepts of our proposal and the minimal character of the same, which corresponds to the directives of the Council of Europe, are based on the following criteria:
1) prohibition of performing eugenic practices and practices of biological engineering;
2) responsibilities of the physician;
3) gratuitousness of the sperm donation;
4) consent of the woman who undergos artificial insemination and, in the case of married women, of the husband;
5) sanitary guaranties in the treatment and preservation of the sperm;
6) secrecy of all the operations relative to the insemination;
7) possibility of homologous and heterologous insemination on married and unmarried women;
8) procedures and guaranties for post-mortem insemination;
9) legitimacy of the filiation on the part of the husband who consents to artificial insemination;
10) prohibition of any relation between donor and child.
Physicians have been attempting to find remedies to male sterility as far back as the Middle Ages, but it was only in the 17th Century that the Malpighi first and then the Bibbiena carried out experiments with paleoscientific criteria. In 1779 Lazzaro Spallanzani formulated the problem in scientific terms and in 1785 Thouret succeeded in fecundating his otherwise sterile wife through an intravaginal injection of seminal liquid collected in a tin syringe. In 1866 gynaecologist Marion Sims obtained only one success on 55 attempts made by injecting sperm directly in the uterus. In 1884 Pancoast performed the first heterologous insemination and the following year the first medicine thesis was written on the subject, which lead to the creation in France of a "Society for the practice of artificial insemination". In 1897 the Holy Office declared the procedure illegal.
In more recent times, with the progress of the techniques and with a more exact diagnosis of the cases of male sterility, artificial insemination has spread rapidly both in the homologous form, that is, with the use of the husband's sperm artificially injected in the woman in order to facilitate the fecundation, which is for some reason difficult to obtain naturally, and especially in the heterologous form, that is, with the insemination with the sperm of a third donor. The creation of "sperm banks" dates back to these last twenty years, with the preparation of treatments subjected to strict sanitary controls and tests, and therefore with the possibility of preserving the sperm even for long periods of time. Thanks to "sperm banks", artificial insemination leaves the experimental stage to enter the stage of increasing interventions subjected to rigorous and codified scientific norms.
While the post-war period witnessed an increasingly scientific stage of artificial insemination, the official Catholic hierarchy expressed itself repeatedly, condemning the practice, which was spreading rapidly. Pious XII tackled the problem several times: first of all condemning the way in which the sperm was obtained, masturbation, an act "against nature, intrinsically bad"; and then referring to the relation between marital union and fecundation, and condemning the separation of the different emotional, biological and organic aspects that refer to it; finally, in a speech addressed to midwives in 1951, stating that "to reduce the cohabitation of the spouses and the marital act to a purely organic function for the transmission of genes would be the equivalent of converting the domestic hearth to a mere biological laboratory...": More recently however, there have been several voices, even from within the Church, dissenting from the closed conservatism of Pious XII on the subject of artificial insemination.
To make an example, in the "dictionary of moral theology", published by the Edizioni Paoline, Father M. Di Ianni, admitting the legality of homologous insemination, says that "homologous artificial insemination is feasible, provided there is a marital act that expresses love between two persons, even if not all the components of a normal intercourse occur, reason for which it is necessary to resort to devices that help, but do not replace, that which is formulated in the very nature of the human being". And in the same document issued by the Vatican II, the counciliar Fathers place the different aspects of marital love in the context of a Christian vision of man, with an evaluation that can be referred also to the problems of artificial insemination: "When the question is that of conciliating marital love with the responsible transmission of life, the morality of behaviour...must be determined by objective criteria, issuing from the very nature of the person and his acts, criteria that respect, in a context
of true love, the global meaning of a mutual gift and of a procreation on a human scale" (Gaudium et Spes, n. 51 paragraph 3).
Honourable colleagues! There is no doubt that new moral and psychological problems arise from the application of the techniques offered by the progress of biological sciences in the field of the human person and of inter-personal relations. These must undoubtedly include artificial insemination.
But - as already occurs in other fields contiguous to the one which is the object of this draft bill, contraception and abortion, for example - the problem for the legislator, that is, for the State, is not to prescribe behaviours, propagandize customs, condemn practices, give moral judgements; and even less that of including rules and norms that belong to the field or morale and faith in the regulation of the State. The question is instead to regulate - as we said, in a minimal way - the consequences of what is already widely diffused, accepted and practised in society, preventing inconvenients from arising from such practises, preventing speculations and legislative gaps as far as the rights and the duties toward third parties are concerned.
This is the Parliament's duty; and it is also that which is asked and indicated for the field of artificial insemination in the international and European assemblies, to which our country is related not only by juridical and political bonds, but also by civil bonds, as in the case of European institutions. The need and the urgency for the formulation of a regulation issued by the Parliament arise constantly and with clear evidence, from episodes referring to daily news, generated by the legislative gap that exists in this subject, and that manifest the need for a regulation based on "principles", creating certainties and preventing misuses, without however affecting the freedom of choice of the individual and of the couple in the use of this medical practice. A similar intervention in Parliament is all the more mandatory if we refer to the conclusions of the technical Study Commission, appointed by the Health Ministry, characterized by anachronistic opinions of a reactionary kind, completely opposed to the i
nternational directives, clearly explicable with a modern scientific vision.
These are the reasons inducing us to invite the Parliament to a rapid and positive examination of the following draft bill.
INDEX
Art. 1. (Responsibilities of the physician).
Art. 2. (Prohibition of eugenic practices).
Art. 3. (Sperm donation).
Art. 4. (Women's consent).
Art. 5. (Penalties for the lack of consent).
Art. 6. (Guaranties in the treatment of the sperm).
Art. 7. (Secrecy).
Art. 8. (Heterologous insemination).
Art. 9. (Written application of the spouses).
Art. 10. (Homologous insemination).
Art. 11. (Insemination of an unmarried woman).
Art. 12. (Post mortem insemination).
Art. 13. (Legitimacy of the filiation).
Art. 14. (Relations between donor and child).
DRAFT BILL
Art. 1.
(Responsibilities of the physician).
Artificial insemination must be performed under the responsibility of the physician.
Art. 2.
(Prohibition of eugenic practices).
Any person who uses artificial insemination for eugenic purposes and in any case for selective purposes is punished with three to ten years of detention.
Art. 3.
(Sperm donation).
The concession of sperm on the part of the donor or of the centre for the collection or preservation must be free of charge. The use of the sperm cannot be the object of publicity.
Any person who gives sperm receiving a remuneration of any kind is punished with up to three years of detention. The same penalty is applied for persons who give or allow remunerations, or advertise the use of other persons' sperm.
Art. 4.
(Women's consent).
The consent of the woman and, if the woman is married, of the husband, is necessary to perform artificial insemination. The consent must be expressed in a written form by a person of age, capable of understanding and deciding, before the physicians who will perform the artificial insemination.
Art. 5.
(Penalties for the lack of consent).
Any person who performs an artificial insemination on a non-consenting woman is punished with up to four years of detention. Any person who performs an artificial insemination without a written consent is punished with one to three years of detention.
Art. 6.
(Guaranties in the treatment of the sperm).
The treatment and preservation of the sperm must be entrusted to structures especially authorized by the Health Ministry and subjected to its control.
The physician and the medical board receiving the sperm for the artificial insemination must proceed to perform the appropriate researches and the examinations in order to prevent the transmission on the part of the donor of hereditary or contagious diseases or of other factors dangerous for the health of the woman and of the future baby.
The physician performing the artificial insemination must adopt all the necessary measures to avoid any danger for the health of the woman and of the future baby.
Art. 7.
(Secrecy).
The physician and the staff of the medical structure charged with the collection of the sperm, its treatment and with the artificial insemination, have the duty of respecting the secrecy of the identity of the donor, of the woman, and if the woman is married, of her husband, as well as of guaranteeing the secrecy of every aspect of the artificial insemination.
The physician will not carry out the artificial insemination if the conditions of the maintenance of the secret are not guarantied.
The violation of the secret in the hypotheses listed in the previous comma is punished with one to three years of detention.
Art. 8.
(Heterologous insemination).
Artificial insemination with the sperm of a person other than the spouse cannot be performed but in cases of infertility caused by an irreversible male sterility or when the procreation on the part of the husband would involve a pathological risk for the future baby.
Art. 9.
(Written application of the spouses).
The artificial insemination can be performed only upon the written application of the spouses addressed to a reliable physician.
It is the physician's duty to ascertain the conditions listed in article 8, and can carry out the insemination three months after the application.
The application remains valid for a period of three years.
Art. 10.
(Homologous insemination).
The artificial insemination with the sperm of the husband can be performed only on written request of the spouses to their physician.
Art. 11.
(Insemination of an unmarried woman).
The artificial insemination of an unmarried or widowed woman is performed on request addressed to a reliable physician.
Art. 12.
(Post mortem insemination).
The artificial insemination with the sperm of the husband or the companion is allowed also after the death of the latter, if an explicit consent for the use after the death was expressed.
The insemination must be performed al the latest within the fifth year from the day of the man' death. In such case, the child is considered belonging to the dead man, even if the birth occurs three hundred days after his death.
Art. 13.
(Legitimacy of the filiation).
If the artificial insemination was performed with the consent of the husband, the latter is the legitimate father of the baby. In any case the action of disavowal of paternity is not allowed.
Art. 14.
(Relations between donor and baby).
No relation of filiation can be established between the donor of the sperm and the child conceived with artificial insemination.
No investigations to ascertain the paternity of the child born from artificial insemination with the sperm of a man other than the husband are allowed, nor can a request be made to officially declare the paternity of the donor.
