Order of the Court of Milan, I Civil Section, of 29 March 2013

With this order, the Court of Milan raised the question of the constitutional legitimacy of Article 4.3 of law No. 40 of 2004 on medically assisted procreation, for the part in which it prohibits infertile couples to have recourse to heterologous fertilization. In its judgment of 3 November 2011 in the case S.H et al. v. Austria, the Grand Chamber of the European Court of Human Rights stated that an analogous prohibition existing in the Austrian legislation did not infringe Article 8 of the ECHR; however, the European Court further observed that the margin of appreciation by States in regulating this matter must be evaluated dynamically, at the light of scientific and social progress; and these interpretative criteria are mandatory for national courts. Given this, it has seemed to the Court of Milan that law No. 40 of 2004, in establishing different rules as regards the right to procreation of infertile couples and of couples suffering from other reproductive diseases, is discriminatory and unreasonable, contrary to Articles 3 and 31 of the Constitution; moreover, it is in breach of Article 117 of the Constitution, which imposes respect for international law, because under Article 8 of the ECHR all the individuals shall be free in deciding on their private and family life.