The fight to choose


Italy on Sunday 12th and Monday 13th of June will go to the polls in a referendum to vote on four motions modifying last year’s law 40/2004 on medically assisted procreation. Or rather, some Italians will go to vote, while others will heed the advice offered by many of their elected representatives – to abstain from voting. In an age where legislatures worldwide are faced with the challenge of catching up with scientific advances, Italy’s upcoming referendum has become far more than a decision between those in favour of the current law, or those who wish to change it. Instead it has become a bitterly contested argument about how the 21st century’s bio-ethical arguments should be legislated.

The law 40/2004 introduced last year by Berlusconi’s coalition government, approved with a bipartisan vote, has been controversial from the start. To its proponents, it is the first step in regulating a field that hitherto had been akin to the ‘far west’, or out of control. To its detractors, it is a law full of contradictions, too heavily influenced by the Catholic Church’s moral teaching to the detriment of the health of women seeking medically assisted procreation, as well as to scientific research.

In the face of considerable political opposition, Italy’s Radical party campaigned to collect over a million signatures calling for a referendum to cancel the legislation. The constitutional court ruled in January of this year that this was not acceptable. Instead voters will be offered the chance to remove or retain four of the most controversial clauses of the law. In substance these clauses limit the amount of embryos that may be created during a cycle of medically assisted conception; ban the storing of embryos; control what tests may be carried out on the embryo; ban the use of gametes from outside of the couple; limit the availablity of medically assisted conception to couples according to certain criteria.

The one thing that the country seems to be in agreement on is that the law 40/2004 is, in its current state, far from perfect. There are those like Mario Palmaro, Professor of bio-ethics and national co-ordinator of the group Vita e Verita [Truth and Life], who sustains the law is flawed because it doesn’t go far enough[1]. There are those like leader of the House of Deputies (and tipped by many to succeed Berlusconi as the natural leader of the right), Pier Ferdinando Casini who, while against the referendum, has said “no one is suggesting that it [40/2004]‘s the best solution, and that it shouldn’t be bettered”[2].

It’s a complex area, but 40/2004 ignores the example of similar pieces of legislation worldwide, and appears to be particularly problematic. In some cases the law contradicts rights established elsewhere in the legal code. For example, according to 396/2000 a mother is guaranteed the right to anonynimity at birth. In 40/2004, in the case of births that result from medically assisted procreation the mother loses that right – though how medical workers or social workers will be able to differentiate between ‘natural’ and ‘artificial’ babies is unclear. In other cases there are measures that while not directly conflicting with current legislation, fail to take into account other laws. The most infamous of these being the regulation that stipulates that all embryos created in a given cycle of medically assisted procreation must be transferred into the uterus, even in the case where parents, through pre-implant screening, discover that an embryo carries serious genetic illness. The logic of the law here, that selection based on genetic criteria should be prevented, may be arguable, but in a State where legal abortion exists, the implications are that in many cases women undergoing medically assisted procreation will be forced to implant embryos, to develop a pregnancy to the point where they will choose abortion.

One of the chief motives behind the law, it would seem, has been to prevent scientific research on embryonic stem cells. The law though only bans research on embryonic stem cells created during the medically assisted conception procedure. It does not preclude research institutes from buying embryonic stem cells from outside the country, and experimenting upon them.

Agreeing that the law is far from perfect may be one thing, but establishing what to do about it is a completley different thing. The questions involved in this arena are formidable: when does life begin? what limits do we as a society wish to place on scientific research? what relation should the church and state have? is the right to conceive to be protected at all costs? The referendum on 40/2004 won’t answer these difficult questions, but the result may very well decide how, at least in Italy, the questions get answered. Or rather, the result may decide who gets to answer these questions.

In January of this year, the Episcopal conference, held in Bari, expressed itself contrary to the modification of the law. Cardinal Ruini, the head of the CEI (Italian Bishops’ Conference) declared in the Catholic newspaper Avvenire that “to achieve the objective [the non-modification of 40/2004], we will choose the most effective path, and abstention is one possibility”[3]. The call to abstain from voting has been shared by a number of high ranking politicians including members of the government, and a number of scientists and medics from across the political spectrum.

There are two principles behind the call for abstention: the first is that it is a legitimate democratic option, say its proponents. Article 75 of the Italian Constitution, which sets out the conditions governing the holding of a referendum, declares that for a referendum to be valid it must have a quorum of 50%+1 of the registered electorate. While it is your constitutional right to vote, implicit in this article is that it is your constitutional right not to vote. There are those who believe that material such as this should not be decided by referendum, but instead by Parliament. The second principle is slightly less idealistic and governed by a clear understanding of voting trends. Ruini admitted to Italy’s daily newspaper Corriere della Sera in March that “many abstain in any case, [keep in mind that the referendum is held on a june weekend, after schools finish for summer], so there’s already a quota of abstentions to which we’ll be added”[4].

At the same time there is a vigorous campaign calling for voters to a) turn out, and b) to vote in favour of the referendum’s four motions. Politicians from the left and the right, catholic and communist have come out in defense of the referendum as a valid democratic exercise. From blogs and websites through to sms messages and public debates, groups in favour of the referendum hope to mobilise voters to exercise their active democratic rights, rather than passive.

It’s not easy to determine the natural constituency either for a ‘yes’ vote, or for abstention. Certainly the Bishops have indicated which way they expect people to act, but there are many Catholics, including clergy, who have seen this as an unacceptable and who intend to vote in favour of the referendum (Over 900 people, many of them priests and nuns, have signed a petition on the ADISTA website calling for freedom of conscience in relation to the referendum http://www.adista.it/). At the same time there are many who may not naturally support the Catholic Church and its intervention into legislative politics who nonetheless are uncomfortable with any legislation that permits scientific research on embryonic stem cells, for example.

Prime minister Silvio Berlusconi, whose electorate is based to a large extent on both women and catholic voters, has been conspicuous by his silence on the whole issue of voting. This week, when asked whether he would vote [not how, but whether], responded ‘who knows?’.

The complex nature of the subject paradoxically seems to have limited the debate, at least in our experience at Three Monkeys Online. During the referendum campaign we sent out ten questions based on the referendum to proponents of the ‘yes’ campaign, the ‘abstain’ campaign, and a number of political parties. Two different groups on the pro-referendum side responded immediately and in-depth. Despite repeated requests, the main groups in favour of abstention have yet to respond to any of our questions. The argument that the area of bio-ethics is complex and poses huge philosophical, legal and practical challenges is without doubt. Should that, though, absolve those who support 40/2004 from engaging in debate? Should the fact that a legal question is complex deny the electorate their constitutional right to decide upon it?

The question that Italian voters are being asked to decide on Monday is ostensibly about certain clauses of 40/2004. In reality it’s not about what to vote, but whether to vote. On Monday, voters, or non-voters as the case may be, will decide.

Andrew Lawless is the editor of Three Monkeys Online magazine, a free current affairs/arts magazine produced by writers in Ireland, Italy and Spain.

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