scholarly journals Medically assisted procreation and fast-moving developments in science and law: ethical and legal issues in heterologous procreation in Italy

2015 ◽  
Vol 4 (2) ◽  
Author(s):  
Paola Delbon ◽  
Adelaide Conti

In Italy, a law on Medically Assisted Procreation was passed in 2004. In 2014 the Constitutional Court declared section 4 para. 3 of this Law to be unconstitutional in the part where it prohibits couples from accessing heterologous medically assisted procreation techniques if a condition which causes complete, irreversible sterility or infertility has been diagnosed. The fast-moving developments in science and law, and the deep implications that the application of <em>new</em> techniques − which involve in the context of procreation a third person − can have in terms of protection of health and not only, makes it appropriate to keep under review this area, taking into account the pronouncements of the European Court of Human Rights and regulations in European countries.

2011 ◽  
Vol 60 (1) ◽  
Author(s):  
Marina Casini

L’articolo esamina criticamente il contenuto di tre recenti ordinanze giudiziarie (Tribunali di Firenze, Catania, Milano) che chiedono alla Corte Costituzionale di annullare il divieto di fecondazione artificiale eterologa sancito dalla legge italiana sulla “procreazione medicalmente assistita” (L. 40 del 2004). Viene presa in esame, sebbene marginalmente, anche la discutibile decisione della Corte europea dei diritti dell’uomo sul caso S.H. vs. Austria del 1 aprile 2010 che ha influito nelle decisioni dei giudici italiani. Dopo gli interventi volti a introdurre la diagnosi genetica preimpianto, è adesso la volta degli interventi miranti a introdurre la scissione concordata e pianificata della genitorialità. I diritti del concepito si trovano così di fronte a una nuova difficile prova. ---------- The article critically examines the content of three legal decisions (Courts of Florence, Catania and Milan) which ask the Constitutional Court to invalidate the prohibition of heterologous artificial fertilization in the Italian law on medically assisted procreation (Law n. 40 from 2004). The controversial ruling of the European Court of Human Rights in the case of S.H. vs. Austria decided April 1, 2010 is also examined in passing as it influenced the decisions of the Italian judges. After interventions with the intention of introducing pre-implantation genetic diagnosis, now the attempt is to introduce a planned and agreed upon dissociation of parenthood. The rights of the conceived child are thus facing a new, difficult trial.


2019 ◽  
Vol 19 (4) ◽  
pp. 282-297 ◽  
Author(s):  
Gianluca Montanari Vergallo

The rise of Medically Assisted Procreation has led to the issue of how to determine who is entitled to parental status and custody rights. In this article, the author comments upon the rationale and legal principles that Italian Courts have applied in order to solve those problems, given the absence of a targeted piece of legislation. The principle of the child’s best interests, the ‘public order’ clause and various rulings from the European Court of Human Rights constitute the foundations on which legal trends have developed, allowing same-sex couples to become parents through ‘stepchild adoption’ or the legal registration of children born through heterologous fertilization practices abroad. Italy has therefore repositioned itself a step closer to the middle ground with respect to the overall European scenario: Italy’s law now acknowledges motherhood for intended mothers, although it continues to stop short of recognizing same-sex marriage.


Author(s):  
Yaroslav Skoromnyy ◽  

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».


Author(s):  
Sarah Ganty

Abstract Judgment: European Court of Human Rights, Lăcătuş v Switzerland 14065/15 (ECtHR, 19 January 2021), Judgment (Merits and Just Satisfaction) Section of the Court: Chamber (Third Section) Applicable Convention Rights: Article 8 echr (Right to respect for private and family life) – Violation Primary Legal Issues: Did Switzerland violate Article 8 echr by imposing a fine and subsequent imprisonment for five days for non-payment on a poor and vulnerable Roma woman for unintrusive begging? Link to Case: <http://hudoc.echr.coe.int/eng?i=001-207377>


Author(s):  
Egidijus Küris

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.


2014 ◽  
Vol 8 (4) ◽  
pp. 19-26
Author(s):  
Izabela Bratiloveanu

 The Object formula („Objecktformel”) has been designed and developed in the mid century XX by Günter Dürig, starting from the second formula of Kant's categorical imperative. The Federal Constitutional Court of Germany took the formula and applied it for the first time in the case of the telephone conversations of December 15, 1970. The Object formula („Objecktformel”) was taken from the German constitutional law and applied in the jurisprudence of the European Court of Human Rights.


Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.


Author(s):  
Kushtrim Istrefi ◽  
Cedric Ryngaert

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.


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