Soggettività e concepito

Abstract

The jurist has to face often long-standing issues such as the beginning of human life, embryo’s nature, in vitro fertilisation, the legitimacy of research and experiments on stem cells. The Italian jurist finds himself at a crossroad of difficult solution: to find a balance between the laconic definition in article 1 of our civil code and the changes imposed by the evolution of biotechnology full of ethical and moral issues that the legislator of the '40s never would have taken in consideration. However the indisputable and undisputed legal relevance of the unborn child in our system is due to the “constitutional turning-point” thus once we have passed by the assimilation of individual rights as a proprietary scheme (you are because you own) to an anthropocentric conception of the legal system. In this perspective is placed the abandon of any attempt aimed to operate unjustified mingling between subject and object of law and the urgency of giving a technical meaning to the terms “legal capacity”, “subjectivity” and “personality”. Especially it is necessary to re-read the articles 1, 462 and 784 of the civil code in the light of constitutional principles that define the position of the embryo in order to avoid solutions of convenience, is connoted only by a lack of courage of choice. In order to delineate fully the status of the unborn child in our legal system, in the third chapter it has been attempted a comparison between two important laws: l. n. 194 of 1978 and the l. n. 40 of 2004. The first law, albeit it has opened to the legalization in Italy of the practice of abortion, protecting in a strong way women, their self-determination but, most of all, their health, has also razed the way for the enhancement of the unborn child as a person. The legislator was not so much careful when he enacted rules on medically assisted procreation, which are full of moral connotations aimed at outlining the status of an embryo that has to be protected more than the fetus. However, the precise reconstruction of an aware and responsive judge’s activity, as well as the recent interventions of the European Court of Human Rights and, most recently, the Constitutional Court, have led to a revision of the most damaging aspects of women's health and, indirectly, of the unborn child too. Despite the incessant jurisprudential activity, incoherence and disharmony between the two laws is obvious. At the end of this study was, therefore, possible making the assumption, confirmed both by the law of abortion and by the law concerning the MAP (medical assisted procreation), that human life begins in the instant of conception and must be protected from that moment.