chapter  4
14 Pages

Rights, bioconstitutionalism and the politics of reproductive citizenship in Italy

ByPatrick Hanafin

Introduction In this article I examine how citizen contestation of Italy’s restrictive legislation on assisted reproductive technologies (ART) has brought about a judicial re-scripting of the Act and has seen the emergence of what can be termed as an active ‘biological citizenship’1 on the part of those affected by the legislation’s prohibitions. The legislation, Legge 19 febbraio 2004, no. 40, Norme in materia di procreazione medicalmente assistita, narrowed the scope of reproductive citizenship by according symbolic legal recognition to the embryo and prohibiting embryo research, embryo freezing and donor insemination. It also prevented gay couples, single women and couples with genetically inherited conditions from gaining access to ART. The Act, while purporting to regulate the assisted reproductive sector, is, in effect, a means of promoting a conservative notion of family formation, and of excluding individuals who do not fit into this model from access to ART. As Krause and Marchesi have put it:



. . . the . . . legislation suggests the ‘proper way to have children’ is within the bounds of the heterosexual family organized around traditional gender roles and a cohesiveness borne of homogeneity. (Krause and Marchesi 2007, p. 358) The Act has provoked numerous legal challenges (in local Courts, the Italian

Constitutional Court and, most recently, in 2012, a successful challenge at the European Court of Human Rights in Strasbourg) by individuals affected by its prohibitions on the grounds that it interferes with and is incompatible with pre-existing constitutional rights to privacy, health and freedom from discrimination. As Meltzer (2011, p. 111) has observed: ‘Speaking in the name of their physical vulnerability and mobilizing their damaged bodies, they acted as “biological citizens”’. Such ‘biological citizens’ use their bodies as a strategic means of achieving full reproductive citizenship. The notion of the biological citizen is an interesting one in that it brings together both the reality of contemporary political regimes in which we are all the subjects of governance, with the co-existing ability to resist such governance. It creates a space of resistance in which citizens take on an active role in contesting the manner in which their citizenship is constructed.