Order of the Court of Florence of 29 March 2013

With this order, the Court of Florence decided on the claim brought by two spouses who wished to have recourse to heterologous fertilization notwithstanding the prohibition of the latter, which results from Article 4.3 of law No. 40 of 2004 on medically assisted procreation, in application of the decision of first instance of the European Court of Human Right in the case S.H et al. v. Austria (later reformed by the Grand Chamber), which had declared such a prohibition contrary to the right of respect for private and family life and to non-discrimination principle under Articles 8 and 14 of the ECHR. In the opinion of the claimants, Article 4.3 of law No. 40 had become not applicable by national courts as an effect of the Lisbon Treaty, which, once become effective, has made that the ECHR is a part of EU Law; as an alternative, the claimants asked the Court to raise the question of the constitutional legitimacy of Article 4.3, as being in breach of Articles 11 and 117.1 of the Constitution, which impose respect for international obligations. The Court stated, firstly, that the ECHR is not automatically applicable into the legal order of the EU member states; secondly, given that the decision of first instance of the European Court of Human Right was reformed by the Grand Chamber, Article 4.3 of law No. 40 did not longer seem to be incompatible with the ECHR and, thus, with Articles 11 and 117.1 of the Constitution. To the contrary, the question of the legitimacy of Article 4.3 with regard to Article 3 of the Constitution was not manifestly unfounded, because the prohibition to have recourse to heterologous fertilization amounts to an unreasonable and discriminatory treatment of the sterile couples in comparison with those suffering from other reproductive diseases.