The essay analyses English case law on removing life-support to minors who cannot decide on their... more The essay analyses English case law on removing life-support to minors who cannot decide on their health due to age or disease. In such delicate circumstances, doctors asked to withdraw the treatment since it is futile, and parents opposed them, pointing out that its continuation does not cause significant harm to their child. The recourse to a guiding criterion for the judges to decide impartially is thus necessary. However, as the Author noted, using the child’s best interest could raise concerns, resulting in an empty formula whose content ultimately depends on the judges’ conscience and beliefs.
The essay investigates the scope and the extent of protection of the right to withdraw from the i... more The essay investigates the scope and the extent of protection of the right to withdraw from the in vitro fertilization procedure before the fertilized frozen egg’s implantation. The Italian Constitutional Court has recently grappled with the issue, holding that it would not be unreasonable to constrain the man’s right to decide not to become a parent in the event of marital separation or divorce if the woman wants to continue the procedure. That, in consideration of the strict legal framework of the Italian legislation governing access to IVF, the physical and psychological impact of the treatments on the woman’s health, and the respect due to dignity of the cryopreserved embryos. The author will shed light on the incoherences underlining the court’s reasoning, confronting it with other foreign cases dealing with the same debated question by adopting (even in favour of the woman) a different and more consistent balancing of the interests at stake.
The case of Indi Gregory is paradigmatic of the ethical and legal issues in- volved in the decisi... more The case of Indi Gregory is paradigmatic of the ethical and legal issues in- volved in the decision to withdraw life support from an infant. The purpose of this paper is to analyze the case from a dual perspective, ethical and legal, discussing the issue of best interest of the infants.
The essay investigates the issue of maternal surrogacy from a comparative perspective, exploring ... more The essay investigates the issue of maternal surrogacy from a comparative perspective, exploring whether and how both judges and legislators can ensure the legal protection of minors born through these procreative methods respecting — at the same time — the dignity of the pregnant women. To this end, the Author will retrace the dialogue between the First Section and United Sections of the Court of Cassazione, and the Italian Constitutional Court, in regulating the parental relation- ship following a maternal surrogacy abroad. After examining the reasons supporting the judicial decisions and detecting their logical incoherences, the study will consider some foreign legal systems (UK, British Columbia, California and Portugal) allowing gestation for others. This comparative analysis will suggest a possible legislative reform of l. 19 february 2004 n. 40 needed to relieve national judges from inconsistently ruling on such ethical issues to fill a legislative void.
This article analyses the recent reform bill filed by the Law Commission of England, Wales and Sc... more This article analyses the recent reform bill filed by the Law Commission of England, Wales and Scotland on surrogacy, exploring how and to what extent it may fill the gaps in current British legislation on the subject, better-balancing woman’s dignity and the interest of the child. As the Author points out, despite some crit- icism, the Surrogacy bill could well, as a whole, be a model for foreign legislators wishing to tackle such a sensitive and socially divisive issue.
The article examines the legislative proposal on medically assisted death by the working group 'P... more The article examines the legislative proposal on medically assisted death by the working group 'Per un diritto gentile', reviewing its contents through the lens of ECHR case law and the Spanish Ley Orgánica de regulación de la eutanasía. The comparative analysis sheds light on the need for additional safeguards to protect patients' autonomy and ensure that medical professionals comply with their informed, free from any pressure or abuse will.
The research analyzes the recent Italian draft laws on Medical Assistance in dying, their strengt... more The research analyzes the recent Italian draft laws on Medical Assistance in dying, their strengths and several shortcomings, comparing them with other European laws on this subject. The Italian draft laws are not fully hinged on the exercise of self-determination of the suffering person but remain bound to the reference to a condition of proximity to death or the presence of life-sustaining treatments, which in fact cause unjustified inequities in access to a health service aimed at protecting the dignity of the person. Furthermore, the articulation of the procedures for requesting and assessing suitability outlined in the Italian bills does not allow to fully protect the person in a condition of vulnerability from the risk of abuse and conditioning, nor to fully protect procedural justice.
The essay analyses the general ban for the donation of embryos placed into cryopreservation, stat... more The essay analyses the general ban for the donation of embryos placed into cryopreservation, stated by the Italian legislation n. 40/2004. Such a prevision causes a sine die conservation not only for embryos suitable for implantation, but also for those affected by genetic defects or diseases. The essay points out that donating both types of embryos, respectively, to adoption or to scientific fertility research preserves the dignity of the cells in storage, as a will supported by the consent of both gametes’ providers to the ultimate scope of solidarity.
The essay deals with the effects of the withdrawal of the consent to use stored embryos the creat... more The essay deals with the effects of the withdrawal of the consent to use stored embryos the creation of which was brought about in vitro, once the two partners have broken up and only the woman wants to receive medical assistance to carry a child. The analysis focuses on two opposite Italian judicial decisions, which are compared to an English one. This broader perspective on the subject provides for two diverging possible solutions, each based not on a formally different legislative framework, but a different balance between the values of life, dignity, personal autonomy and health underlying – both in civil law and common law – the medically assisted procreation (MAP)
Family law disputes involve a wide range of emotions affecting the couples and, in particular, th... more Family law disputes involve a wide range of emotions affecting the couples and, in particular, their children. The adversary system is not often adequate to manage the resolution of the conflicts between husband and wife, because it stresses the hostility and prevents a normal dialogue, that would be very useful for a peaceful relationship after the divorce. The collaborative method, by contrast, is a settlement-oriented process where parties cooperate fairly in negotiations, assisted by their lawyers, and attempt to solve the family disputes with an equitable agreement. The collaborative law process has two main features: first of all, the lawyers who have assisted their clients in negotiation cannot represent them in contested divorce court proceeding; secondly, the parties sign an agreement by which they undertake to act fairly and in good faith during negotiations. The essay looks at the agreements between clients and their lawyers and then compares the Italian, French and United States legislations regulating this particular way of managing family disputes.
The essay deals with advance directives to allow or to refuse medical treatment, specifically whe... more The essay deals with advance directives to allow or to refuse medical treatment, specifically when the person is in a situation of incapacity. The first part focuses the notion of human dignity in connection with the idea of individual autonomy as right to personal identity and as right to health. The second part of the essay is dedicated to the more remarkable parts of Italian legislation (l. 219/ 2017) that enables someone aged 18 and over, while still capable, to take decisions for foreseeable medical treatments for a time in the future when they may lack the capacity to consent to or refuse that treatment. At last, under a comparative point of view, the essay deals with the English statutory framework (Mental Capacity Act, 2005) for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future.
The essay analyses English case law on removing life-support to minors who cannot decide on their... more The essay analyses English case law on removing life-support to minors who cannot decide on their health due to age or disease. In such delicate circumstances, doctors asked to withdraw the treatment since it is futile, and parents opposed them, pointing out that its continuation does not cause significant harm to their child. The recourse to a guiding criterion for the judges to decide impartially is thus necessary. However, as the Author noted, using the child’s best interest could raise concerns, resulting in an empty formula whose content ultimately depends on the judges’ conscience and beliefs.
The essay investigates the scope and the extent of protection of the right to withdraw from the i... more The essay investigates the scope and the extent of protection of the right to withdraw from the in vitro fertilization procedure before the fertilized frozen egg’s implantation. The Italian Constitutional Court has recently grappled with the issue, holding that it would not be unreasonable to constrain the man’s right to decide not to become a parent in the event of marital separation or divorce if the woman wants to continue the procedure. That, in consideration of the strict legal framework of the Italian legislation governing access to IVF, the physical and psychological impact of the treatments on the woman’s health, and the respect due to dignity of the cryopreserved embryos. The author will shed light on the incoherences underlining the court’s reasoning, confronting it with other foreign cases dealing with the same debated question by adopting (even in favour of the woman) a different and more consistent balancing of the interests at stake.
The case of Indi Gregory is paradigmatic of the ethical and legal issues in- volved in the decisi... more The case of Indi Gregory is paradigmatic of the ethical and legal issues in- volved in the decision to withdraw life support from an infant. The purpose of this paper is to analyze the case from a dual perspective, ethical and legal, discussing the issue of best interest of the infants.
The essay investigates the issue of maternal surrogacy from a comparative perspective, exploring ... more The essay investigates the issue of maternal surrogacy from a comparative perspective, exploring whether and how both judges and legislators can ensure the legal protection of minors born through these procreative methods respecting — at the same time — the dignity of the pregnant women. To this end, the Author will retrace the dialogue between the First Section and United Sections of the Court of Cassazione, and the Italian Constitutional Court, in regulating the parental relation- ship following a maternal surrogacy abroad. After examining the reasons supporting the judicial decisions and detecting their logical incoherences, the study will consider some foreign legal systems (UK, British Columbia, California and Portugal) allowing gestation for others. This comparative analysis will suggest a possible legislative reform of l. 19 february 2004 n. 40 needed to relieve national judges from inconsistently ruling on such ethical issues to fill a legislative void.
This article analyses the recent reform bill filed by the Law Commission of England, Wales and Sc... more This article analyses the recent reform bill filed by the Law Commission of England, Wales and Scotland on surrogacy, exploring how and to what extent it may fill the gaps in current British legislation on the subject, better-balancing woman’s dignity and the interest of the child. As the Author points out, despite some crit- icism, the Surrogacy bill could well, as a whole, be a model for foreign legislators wishing to tackle such a sensitive and socially divisive issue.
The article examines the legislative proposal on medically assisted death by the working group 'P... more The article examines the legislative proposal on medically assisted death by the working group 'Per un diritto gentile', reviewing its contents through the lens of ECHR case law and the Spanish Ley Orgánica de regulación de la eutanasía. The comparative analysis sheds light on the need for additional safeguards to protect patients' autonomy and ensure that medical professionals comply with their informed, free from any pressure or abuse will.
The research analyzes the recent Italian draft laws on Medical Assistance in dying, their strengt... more The research analyzes the recent Italian draft laws on Medical Assistance in dying, their strengths and several shortcomings, comparing them with other European laws on this subject. The Italian draft laws are not fully hinged on the exercise of self-determination of the suffering person but remain bound to the reference to a condition of proximity to death or the presence of life-sustaining treatments, which in fact cause unjustified inequities in access to a health service aimed at protecting the dignity of the person. Furthermore, the articulation of the procedures for requesting and assessing suitability outlined in the Italian bills does not allow to fully protect the person in a condition of vulnerability from the risk of abuse and conditioning, nor to fully protect procedural justice.
The essay analyses the general ban for the donation of embryos placed into cryopreservation, stat... more The essay analyses the general ban for the donation of embryos placed into cryopreservation, stated by the Italian legislation n. 40/2004. Such a prevision causes a sine die conservation not only for embryos suitable for implantation, but also for those affected by genetic defects or diseases. The essay points out that donating both types of embryos, respectively, to adoption or to scientific fertility research preserves the dignity of the cells in storage, as a will supported by the consent of both gametes’ providers to the ultimate scope of solidarity.
The essay deals with the effects of the withdrawal of the consent to use stored embryos the creat... more The essay deals with the effects of the withdrawal of the consent to use stored embryos the creation of which was brought about in vitro, once the two partners have broken up and only the woman wants to receive medical assistance to carry a child. The analysis focuses on two opposite Italian judicial decisions, which are compared to an English one. This broader perspective on the subject provides for two diverging possible solutions, each based not on a formally different legislative framework, but a different balance between the values of life, dignity, personal autonomy and health underlying – both in civil law and common law – the medically assisted procreation (MAP)
Family law disputes involve a wide range of emotions affecting the couples and, in particular, th... more Family law disputes involve a wide range of emotions affecting the couples and, in particular, their children. The adversary system is not often adequate to manage the resolution of the conflicts between husband and wife, because it stresses the hostility and prevents a normal dialogue, that would be very useful for a peaceful relationship after the divorce. The collaborative method, by contrast, is a settlement-oriented process where parties cooperate fairly in negotiations, assisted by their lawyers, and attempt to solve the family disputes with an equitable agreement. The collaborative law process has two main features: first of all, the lawyers who have assisted their clients in negotiation cannot represent them in contested divorce court proceeding; secondly, the parties sign an agreement by which they undertake to act fairly and in good faith during negotiations. The essay looks at the agreements between clients and their lawyers and then compares the Italian, French and United States legislations regulating this particular way of managing family disputes.
The essay deals with advance directives to allow or to refuse medical treatment, specifically whe... more The essay deals with advance directives to allow or to refuse medical treatment, specifically when the person is in a situation of incapacity. The first part focuses the notion of human dignity in connection with the idea of individual autonomy as right to personal identity and as right to health. The second part of the essay is dedicated to the more remarkable parts of Italian legislation (l. 219/ 2017) that enables someone aged 18 and over, while still capable, to take decisions for foreseeable medical treatments for a time in the future when they may lack the capacity to consent to or refuse that treatment. At last, under a comparative point of view, the essay deals with the English statutory framework (Mental Capacity Act, 2005) for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future.
La volontà e il corpo - II edizione riveduta e ampliata, 2022
Il volume affronta il tema del ruolo della volontà individuale nelle decisioni che riguardano, in... more Il volume affronta il tema del ruolo della volontà individuale nelle decisioni che riguardano, in senso ampio, il corpo umano. In particolare il principio di autodeterminazione, quale epifania del più ampio concetto di dignità personale, è posto a raffronto con le disposizioni in tema di trattamento sanitario - anche in riferimento alle prescrizioni anticipate di cura di cui alla l. n. 219/2017 - e con le scelte, assai complesse e dense di implicazioni sociali, sul termine della vita. La trattazione prosegue con l’esame della natura e della latitudine del consenso al prelievo di organi e tessuti da cadavere, per concludersi con l’analisi del ruolo della volontà nella procreazione, in quelle ipotesi in cui la riproduzione consegue all'applicazione di tecniche mediche. Ciascun argomento è trattato attraverso un costante uso del metodo comparatistico, in modo da mettere a confronto le soluzioni che ordinamenti diversi offrono a questioni intricate, nelle quali non è semplice separare in maniera netta la dimensione giuridica da quella emotiva.
Il volume affronta il tema del ruolo della volontà individuale nelle decisioni che riguardano, in... more Il volume affronta il tema del ruolo della volontà individuale nelle decisioni che riguardano, in senso ampio, il corpo umano. In particolare il principio di autodeterminazione, quale epifania del più ampio concetto di dignità personale, è posto a raffronto con le disposizioni in tema di trattamento sanitario – anche in riferimento alle prescrizioni anticipate di cura di cui alla l. n. 219/2017 – e con le scelte, assai complesse e dense di implicazioni sociali, sul termine della vita. La trattazione prosegue con l’esame della natura e della latitudine del consenso al prelievo di organi e tessuti da cadavere, per concludersi con l’analisi del ruolo della volontà nella procreazione, in quelle ipotesi in cui la riproduzione consegue all’applicazione di tecniche mediche. Ciascun argomento è trattato attraverso un costante uso del metodo comparatistico, in modo da mettere a confronto le soluzioni che ordinamenti diversi offrono a questioni intricate, nelle quali non è semplice separare in maniera netta la dimensione giuridica da quella emotiva.
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