Corte Costituzionale, sentenza 11/11/2015 n° 229
Nuova pronuncia della Corte Costituzionale sulla L. 40/04.
Questa volta sul banco degli imputati è l’art. 13 della L. 40/04 “Divieto di sperimentazione sugli embrioni umani”. Ed è la prima volta che questa disposizione che prevede un divieto assoluto di sperimentazione e indagine sull’embrione viene toccata da una decisione della Consulta. In sintesi la Corte ha adeguato l’impianto della legge anche sotto il profilo penalistico alle proprie precedenti pronunce (sentenza 151/09 -3 embrioni e obbligo di contemporaneo impianto; sent 96/15 -accesso delle coppie fertili alla PMA e PGD). In particolare quest’ultima ha recentemente affermato il diritto delle coppie fertili portatrici di patologie genetiche trasmissibili alla prole, qualificabili per analogia secondo il criterio normativo di gravità previsto dalla legge 194/78 (aborto terapeutico in caso di gravi malformazioni del feto), di accedere alla Procreazione assistita preceduta dalla tecnica di diagnosi genetica di pre impianto (forma di diagnosi pre- natale diretta a verificare lo stato di salute degli embrioni prodotti e finalizzata alla selezione di quelli malati rispetto a quelli sani da trasferire). Affermato il diritto della coppia di selezionare l’embrione sano da quello malato non aveva senso lasciare la previsione penale di cui all’art. 13 c. 3 lett b) che prevedeva una sanzione penale a carico del sanitario che eseguisse in tali casi la selezione a tutela della salute della donna evitando di trasferire l’embrione malato.
Un divieto che non aveva ragione di esistere alla luce delle pronunce di incostituzionalità già emesse.
Quanto alla questione della eventuale possibilità di soppressione dell’embrione risultato malato, la Consulta ha precisato che il divieto previsto dalla legge risulta conforme al principio di ragionevolezza rientrando nella discrezionalità del legislatore prevedere che a tutela della dignità dell’embrione (ancorchè malato) non sussistendo alcun diritto antagonista da bilanciare ( non la tutela della salute della donna, né esigenze autodeterminative della coppia) lo stesso deve essere crioconservato a tempo indeterminato.
In sintesi:
- selezionare gli embrioni da trasferire al fine di tutelare il prioritario interesse alla salute della donna non è più reato e dunque il sanitario dovrà procedere, sussistendo i requisiti di gravità della patologia ex art 6 l. 194/78, all’impianto dei soli embrioni sani preventivamente individuati tali con la PGD
- in assenza di un diritto antagonista da bilanciare a tutela della dignità dell’embrione permane il divieto di soppressione dello stesso e il correlativo obbligo per i centri di PMA di crioconservazione a tempo indefinito.
Il prossimo 22 marzo la Corte Costituzionale sarà chiamata a pronunciarsi sull’art.13 l.40 sulle questioni riguardanti embrioni non idonei per una gravidanza, ricerca scientifica e revoca del consenso.
Articolo tratto da: http://www.altalex.com/documents/news/2015/11/12/fecondazione-assistita-cade-il-divieto-assoluto-di-selezionare-gli-embrioni
Scritto da: Gianni Baldini
(Altalex, 12 novembre 2015. Nota di Gianni Baldini, Filomena Gallo eAngiolo Calandrini)
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