New Italian guidelines allow single women to transfer embryos… but only following a heterosexual relationship

The Italian law on assisted reproduction – introduced in 2004 and known as Law 40 – has become famous, for being one of the most restrictive in Europe. In its original form, it allowed access to treatment only to heterosexual married or cohabiting couples in their 'fertile age' whose infertility had to be medically certified.

According to the law, a maximum of three eggs could be fertilised in any cycle, and should be transferred as soon as possible after fertilisation. Cryopreservation of embryos was forbidden as were donor conception and surrogacy. Withdrawal from treatment was, in principle, impossible after egg fertilisation for intended parents who had given their consent; and, contrary to what was available for other women, those who had conceived thanks to fertility treatment were not allowed to withdraw maternal responsibilities and rights after giving birth.

Since 2004, the content of the law has been significantly modified thanks to the intervention of local, national and international courts, that have dismantled some of the bans and made room for a more inclusive and clinically informed approach to the use of reproductive technologies. These changes have highlighted the incompatibility of the original law with a broader national and international legal framework protecting health, privacy and family life. Despite this, Italian lawmakers have never engaged in a collective revision of the law's principles in Parliament, and never worked towards the promotion of a different general legal framework for the application of assisted reproductive technologies (ART).

Since the law came into force, the Ministry of Health has been responsible for issuing national guidelines about its implementation, clarifying the effects of court decisions and scientific and clinical advances, for providers and patients trying to navigate the rules around fertility treatment. A target to update guidelines every three years has been repeatedly missed, so the most recent set of guidelines, made available in March 2024, nine years after the previous one, has attracted particular attention from scholars, patients and the press.

Altogether, the new guidelines illustrate how, compared with the original text of the law and its interpretation at the time it came into force, things have changed dramatically for patients and providers. In particular, it confirms that some of the bans have been cancelled, now extending access to treatment to:

• People who carry genetic conditions;
• People who have HIV, Hepatitis B or C;

and allowing providers:

• To fertilise more than three eggs per cycle;
• To cryopreserve embryos for subsequent transfers;
• To store unused embryos;
• To perform PGD on embryos;
• To use donor eggs or sperm;
• To transfer embryos posthumously (if the male partner dies after fertilisation);
• To transfer embryos after divorce or separation.

The main changes introduced by the courts over the years and confirmed by these guidelines, include the option of fertilising an indefinite number of eggs, the recognition of women's freedom to decide whether and when to accept the transfer of fertilised eggs, the possibility of cryopreservation, the use of donor sperm and eggs, and the accessibility to treatment for couples who are not considered infertile but rather carrying genetic or viral diseases.

Special attention must be paid to the question of withdrawal from treatment, transfer, or parental responsibilities. The law establishes that maternal responsibility begins with consent to the transfer of fertilised eggs, and forbids women who became pregnant through fertility treatment to withdraw maternal responsibilities and rights at birth; something which is permitted for women who conceived naturally.

Recently, national courts have been asked to clarify the option of withdrawal from parental responsibilities and rights for men involved in treatment. It has been decided that consenting to the fertilisation of eggs is equal to consenting to take on parental responsibilities towards children-to-be, and that such consent cannot be withdrawn, regardless of his fate or his relationship's fate.

This decision has been welcome by patient advocates as it indirectly makes room for single women who had previously entered treatment with their then partner, to transfer any remaining embryos without their former partner's agreement.

While this appears progressive, a careful analysis of the law and the new guidelines illustrates how policies are still based on a very restricted understanding of the role of fertility treatment, promoting the myth of the heterosexual nuclear family, and a legal aspiration to protect embryos and promoting 'life'. Such principles continue to restrict access, discriminating against those who fall outside this framework.

Single women are only able to access embryo transfer if they can prove they were in a heterosexual relationship at the time embryos were created. Most single people and same-sex couples continue to be excluded from treatment entirely. So, although the new guidelines have confirmed that access to fertility treatment has widened considerably since 2004, many people living in Italy still need to travel outside the country to access parenthood through assisted reproduction.