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Is age the limit for human-assisted reproduction techniques? ‘Yes’, said an Italian judge
  1. Matteo Gulino1,
  2. Arianna Pacchiarotti2,3,
  3. Gianluca Montanari Vergallo1,
  4. Paola Frati1
  1. 1Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, University of Rome Sapienza, Rome, Lazio, Italy
  2. 2Praxi Pro Vita, Roma, Lazio, Italy
  3. 3Sapienza University of Rome, Rome, Italy
  1. Correspondence to Matteo Gulino, Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, University of Rome Sapienza, 336 Viale Regina Elena, Rome, Lazio 00161, Italy; matteo_gulino{at}


Although use of assisted reproduction techniques was examined by an ad hoc act in 2004 in Italy, there are many opposing views about ethical and economic implications of the technologies dealing with infertility and sterility problems. In this paper, the authors examine a recent judge's decision that ordered the removal and subsequent adoption of a 1-year-old child because her parents were considered too old to be parents. The couple had had recourse to heterologous artificial insemination abroad and decided to give birth in Italy. The judgement deals with and discusses the complex issue of the right to procreate in order to balance the opportunities offered by scientific progress with the unborn child's condition.

  • Aged
  • Artificial Insemination and Surrogacy
  • Clinical Ethics
  • Family
  • Law

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A recent legal case revived in Italy the debate about the right to procreate: on 16 August 2011, Minors’ Court of Piemonte and Valle d'Aosta ordered the removal and consequent adoption of a 1-year-old-child because her parents were considered too old and unsuitable to be parents.1

The psychologist consultant to the judge expressly stated in his report that the large difference of age between the baby and parents was not relevant with respect to the narcissistic need of the parents to have a child.

The case concerns an Italian couple—a 57-year-old woman and a 70-year-old man—who had had infertility problems since 1990. They decided to undergo artificial heterologous insemination treatment abroad owing to the strictness of Italian legislation. After having undergone the treatment abroad, the couple had the baby in Italian territory.

The technological and safety improvements in this treatment have led to a continuous increase in the number of couples, including aging couples, choosing assisted reproductive techniques. Recent statisticsi show that the age of women using assisted reproduction techniques is constantly increasing.2 This led us to think about the socioethical impact that scientific progress in this field may have on the community.


In contrast with other European countries like Holland and Spain, which allow artificial heterologous insemination and surrogate motherhood, the Italian Legislature opted for very strict legislation, forbidding such procedures.3 ,4 Act 40/2004 was introduced not only with the aim of protecting the health of the couple and their right of self-determination but also with the aim of protecting the unborn child's health. Indeed, in addition to forbidding gamete donation, the law expressly states that in the case of medically assisted reproduction, a partner who provided consent to artificial heterologous insemination, even for facta concludentia, cannot exercise disclaimer paternity action—that is, a partner who provided consent cannot later claim paternity rights and duties. The gamete donor shall not acquire any parental juridical relationship with the new-born and he or she cannot exercise any rights nor have any obligations toward the new-born (law no. 40/2004, paragraph 9). Thus, the Italian legislator, presuming breaches of heterologous insemination, considered that in the ascertainment of filiations, social data prevail over genetic data. This rule coincides with the majority of European countries’ legislation.5 ,6

The prohibition of dissociation between filiation and procreation is on the basis of law no. 40/2004, which also forbids surrogate motherhood, considering the importance of preventing hypothetical conflicts between social and genetic parents. The European Court of Human Rights is often involved in resolving cases regarding people's access to their genetic origins. Analysing the European Court case law, we can say in summary that the main protections are (i) the duty to respect a child's life; (ii) the duty to respect the donor's life and (iii) the duty to respect the social parents’ family life.7 The European Court of Human Rights also continued a trend in favour of heterologous artificial procreation techniques for in vitro fertilisation, highlighting the absence in the field of law of insurmountable obstacles to family relations which would result from a successful use of artificial procreation.8

This Italian case does not concern so much the prevalence of the parents’ genetic quality over the biological ones or vice versa. Rather, the case focuses on the inadequacy of the elderly couple as parents: according to the judge, ‘the couple is a distorted application of progress in genetic research. According to Italian law, the judge considers the child that was born in 2010 in Italian territory to be the daughter of the couple. In fact, Italian civil code and law no. 40/2004 consider the mother to be the one who gives birth, and also forbids, in cases using assisted reproduction techniques, her from choosing not to be named on the birth certificate.

The controversial point of this legal case is the suitability of the elderly couple to be good parents. The judge expressly stated that ‘the child’—who was born—‘is the result of a distorted application of the progress in genetic research, that does not consider the condition of the unborn child: the dysfunction is represented by taking into consideration only the point of view of the hopeful parent, that is based on the supposed right to biologically procreate, a right justifying any means. According to the judge's opinion, the choice that motivated the couple pushed them beyond acceptable limits (regarding the age and psychophysical conditions of the couple) and it was based on an omnipotent will to satisfy their own wishes, at any price, and to the detriment of the laws of nature and the unborn child's best interest. In fact, the judge's opinion implies that the child is condemned to an unhappy life, since she will not be able to count on her parents because as old people they will be unable to carry out their parental roles. For the judge, the parents’ advanced age presents an obstacle to the child's happiness and well-being.

Based on this analysis, the authors discern that the new frontiers in the field of the right to procreate have to be calibrated by a trade-off between two different values: on the one hand, the potential parents’ right of self-determination, and on the other hand, the unborn child's right to health and well-being.

The right to procreate—conscious, ethically responsible and juridically sharable—cannot be without limits. Rather, within the sphere of bioethics, this desire should be weighed against other rights and interests, with particular consideration of the child's well-being. The judge states, ‘The couple did not seriously consider the fact that child will be orphaned at a young age and, before that, she will be constrained to look after her old parents, who could present more or less invalidating pathologies, right at the moment when, as a young adult, she will need her parents’ support. Emotionally, how would she face this painful duty? What questions might she raise about the origins of her birth? How will this lapse in judgment affect her growth?’

While the judge's statement can be understood as a comment on the initial decision to become parents, this specific case is complicated by the fact that the child has already been born. Given this situation, certain moral and ethical questions arise: is it better to have elderly biological parents, even with the difficulties highlighted by the judge, or to be assigned to adoptive parents through the adoption mechanism? Who decides who is the best parent ab origine? Is it better for the child's well-being to be bonded from the birth by a blood relationship even if the parents are old, or on the contrary is it more suitable to have parents who will love a child born of someone else?

Presumably fundamental to the Italian judge's decision are motivations inspired by the particularly restrictive Italian legislation. Since the couple violated the heterologous insemination ban—and its implied age limit—by going abroad, the judge in effect deprived the couple of their parental authority, considering them unable to carry out the role of parents adequately.

It should be noted that assisted reproduction technologies are allowed in Italy only as a cure for sterility and infertility pathology, not as a free option of natural procreation. This rationale justifies also the specific choice of the Italian legislator (paragraph 5 of law 40/2004) to provide close regulation for those who are eligible (eg, married or co-habiting couples of different sex and older then 18 years) for the allowed procedures. Under this regulation, the unborn child is guaranteed the right to a family based on ‘traditional standards’, with parents able to educate and take care of their own child.

In Italy the right to procreate is guaranteed by the constitution. In particular, paragraph 30 expressly states and protects the right and duty of parents to educate, keep and teach their children. Italian doctrine defines the right and duty to educate children as a ‘duty of solidarity aimed to the whole development of the minor.’9 Accordingly, the judge determined that the elderly age of the couple could not guarantee such solidarity. Nevertheless, the traditional Italian system, which was based on biology, has been totally changed by new assisted reproductive techniques. When the framework of the traditional Italian juridical system was established, children were born from a biologically derived bond. However, new assisted reproduction technologies have changed this structure. Social and economic factors have strongly influenced procreation itself; for example, the average age at which parents have their first child has increased. It follows that the family structure itself has changed: the traditional parent–offspring tie is affected by these radical changes and the traditional bases of this relationship are brought into discussion. According to Italian law, single women are not allowed access to medically assisted reproduction techniques. However, they can overcome this obstacle by undergoing insemination abroad and giving birth in Italian territory, thereby becoming mothers both biologically and in the eyes of the law. What are the deontological, ethical and juridical rules, which state that such a choice, can damage ab origine the unborn child's well-being, or make the child unhappy? Surely the child's chances of happiness are no less than those of a child abandoned by one parent and therefore condemned to living with a single parent. Italian law on assisted reproduction techniques has been strongly criticised and is often considered the result of an ‘exaggerated prohibitionism,’ influenced by ideological and cultural factors that do not fit well within the European context.10 Finally, the Catholic church does not favour assisted reproduction technologies, considering them to be morally similar to artificial contraception.11 More precisely, Pope Benedict XVI affirmed in the Enciclica Sociale of 29 June 2009, that these methods like ‘abortion and contraception are new attempts against life,’ pointing out ‘the urgency of the shaping of an ethical responsibility in the use of the technique.’


From an ethical perspective, the resolution of this issue is difficult because of the balance between the parents’ right to self-determination and the unborn child's protection.

The judicial case examined here demonstrates that in Italy the introduction of law no. 40/2004 did not resolve the various ethical and juridical questions in the assisted reproduction issue. Law no. 40/2004 aims to prevent the exercise of individual freedom from conflicting with the choices of the legislature regarding the health of both the aspirant parents and the embryo. While new assisted reproduction techniques have been a boon for couples faced with infertility, there has been widespread concern in Italy about their power to affirm a narcissistic parental wish at the expense of an unborn child's well-being and protection. In the case examined, an Italian judge determined that a child born to elderly parents would be deprived of this well-being and protection, and therefore should be adopted by a younger couple. However, traditional family standards have been changing in Italy such that genetic ties are no longer automatically considered to be best, and consequently it is ethically too complicated to encompass a priori a child's best interest within sharp and narrow boundaries, as the Italian judge did.



  • Contributors GMV carried out the literature search; MG, AP and PF carried out the literature review; MG and PF wrote the paper. PF is lawyer and Professor of Medicine and Law. MG is a lawyer and PhD of Medicine and Law.

  • Funding None.

  • Competing interests None.

  • Patient consent Obtained.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i In Italy, in 2009 the average age of patients has been 36.2 years old, while in 2008 it has been 35.9 years old and the percentage of patients older then 40 years is also increased from 26.8% in 2008 to 28% in 2009.