Through this order, the Court of Rome raised the question of the constitutional legitimacy of law No. 40/2004 on medically assisted procreation, for the part in which it does not allow pre-implantation diagnosis to prevent the birth of children with hereditary diseases. In 2013, the same section of the Court of Rome had authorized the spouses Costa and Pavan to make recourse to pre-implantation diagnosis, notwithstanding prohibition in national legislation, and this in execution of the judgment issued on the same case by the European Court of Human Rights in 2012: for the European Court, the Italian legislation was in breach of Article 8 of the ECHR. Such a course of action could be not followed, however, regarding a new case, which the European Court of Human Rights had never examined; nor the Court of Rome did upheld the argument that the ECHR has become immediately applicable into the Italian legal order – as is EU legislation – by virtue of the Lisbon Treaty. On the grounds of the Constitutional Court jurisprudence on the relationship between the ECHR and national legislation, the Court of Rome examined, first, whether the provisions in question could be interpreted in a manner consistent with Article 8 of the ECHR; then, having concluded that this was not the case, it deferred the question to the Constitutional Court.
Judgment of the European Court of Human Rights, II Section, 28 August 2012, Costa and Pavan v. Italy;
Decision of the Court of Rome, I Civil Section, of 23 September 2013