The human embryo, subjectivity and legal capacity. Notes in the light of art. 1 of the Italian law on “medically assisted procreation”: doi: 10.7417/CT.2019.2118

Abstract

Aim
This paper aims to examine the legal status of the human embryo taking into consideration Article 1 of the Italian law on medically assisted procreation, which protects the human embryo, which is recognised as an individual holding the same rights as already born children. The progressive increase in legal decisions regarding reproductive technologies requires a re-examination of the traditional legal categories of “subjectivity” and legal capacity, and a deeper understanding of the status of the human embryo as a subject, or individual.

Materials and methods
The following sources were searched: Institutional websites, Research Centre for Social Investments reports, updated jurisprudence and Rulings of Italian Constitutional Court and European Court of Human Rights. In addition, also the following databases were searched: PubMed and Scopus, using the following keywords: medically assisted procreation (MAP) and embryo.

Results
The authors believe that the best orientation is the modern principle of equality (non-discrimination); according to them, the need to protect unborn life requires therefore the consideration of interests which can no longer be confined to the solely patrimonial ones held by the embryo. The paper draws attention to a series of non-patrimonial interests, for whose protection the legal expert has to adopt innovative safeguarding techniques. In this context, there emerge some rights worthy of protection whose potential holders are as yet unborn