Conceiving Life (Law, Justice and Power Series)

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CONCEIVING LIFE

For Julia, con amore

Conceiving Life Reproductive Politics and the Law in Contemporary Italy

PATRICK HANAFIN Birkbeck College, University of London, UK

© Patrick Hanafin 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Patrick Hanafin has asserted his moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA

Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Hanafin, Patrick Conceiving life : reproductive politics and the law in contemporary Italy. - (Law, justice and power series) 1. Fetus - Legal status, laws, etc. - Italy 2. Human reproduction - Law and legislation - Italy I. Title 342.4'5085 Library of Congress Cataloging-in-Publication Data Hanafin, Patrick. Conceiving life : reproductive politics and the law in contemporary Italy / by Patrick Hanafin. p. cm. -- (Law, justice, and power) Includes bibliographical references and index. ISBN 978-0-7546-4635-8 (alk. paper) 1. Human reproduction--Law and legislation--Italy. 2. Body, Human--Law and legislation-Italy. 3. Unborn children (Law)--Italy. 4. Fetus--Legal status, laws, etc.--Italy. 5. Abortion--Law and legislation--Italy. I. Title. KKH513.H36 2007 342.4508'4--dc22 2007021816 ISBN 978-0-7546-4635-8

Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.

Contents Acknowledgements

vii

1

Introduction: Conceiving Life in Law

2

Law, Gender and Nation in Contemporary Italy

15

3

Rethinking Reproductive Freedom: The Case of Abortion

27

4

Vitapolitics: The Campaign Against Reproductive Choice

49

5

The Embryo’s Sovereign Power

59

6

Reformulating Reproductive Citizenship

81

Bibliography Index

1

101 111

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Acknowledgements I would like to thank all those people who have supported me during the writing of this book. Above all I would like to thank Julia Chryssostalis for her love, wisdom, patience and support. A Jean Monnet Fellowship at the Department of Law at the European University Institute in Florence in 2002–2003 allowed me the time and space to develop some of the ideas that eventually found their way into this book. My thanks, in particular, go to Grainne De Burca, Christian Jorges, Wojciech Sadurski and Neill Walker. During my time at the European University Institute I was fortunate to be able to participate in the activities of the Gender Studies Programme at the Robert Schumann Centre for Advanced Studies. Thanks in particular to Dawn Lyon and Sue Millns. I wish to thank everyone at Birkbeck Law School for providing such a supportive and conducive environment in which to pursue research. Thanks in particular to Costas Douzinas, Peter Fitzpatrick, Oscar Guardiola-Rivera, Piyel Haldar, Elena Loizidou and Linda Mulcahy. I would like to thank the administrative team in the Law School who during the years I was working on the project made my life easier with their invaluable support. Thanks especially to Sue Baines, Victoria Goodyear, Shannon Osborn-Jones and Julia Eisner. I wish to thank Rosi Braidotti for her incisive comments on an early draft of the book. Thanks to all those who have so generously invited me to present early versions of ideas from the book at workshops and seminars, including Maria Drakopoulou and Sue Millns at the University of Kent, Ruth Fletcher at Keele University, Andreas Philippopoulos-Mihalopoulos at the University of Westminster and Paulo Ferreira da Cunha at the University of Porto. An earlier version of Chapter 5 appeared as ‘Gender, Citizenship and Human Reproduction in Contemporary Italy’ in Feminist Legal Studies 14/3 (2006) and is reprinted by permission of Springer Publishing.

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Chapter 1

Introduction: Conceiving Life in Law the not-yet-born intermittently press their … demands with an unmistakable but invisible power, a power that exceeds our conventional formulations of agency.1

Introduction The question of the regulation of human reproduction is intimately linked with the question of the relation of the citizen to the state. As Donna Haraway has pointed out, reproductive politics: ‘are at the heart of questions about citizenship, liberty, family, and nation.’2 Reproductive politics has become, in other words, the site in which competing worldviews battle for the definition of both nationhood and citizenship. This conflict over the governance of reproductive freedom of individual citizens is part of a wider conflict about the nature of contemporary democratic politics and the place of women within this system. As Maria Luisa Boccia has put it: ‘Control over the power to reproduce or not to reproduce, inscribed on the female body, has always been and continues to be, at the heart of the conflict between the sexes.’3 This power to generate has, in patriarchal society, been claimed by men despite biological evidence to the contrary.4 It is this symbolic and political usurpation of the power of birth that has placed patriarchal discourse at the foundation of political thinking and organisation. Ironically, when women attempt to recover this power using the extant tools of law and rights they discover that the (masculine) law continues to control their generative power and choices. Within the framework of a masculine legal symbolic, women are accorded, at best, mere permission to abort in limited circumstances, or to gain access to assisted reproductive technologies. What remains constant, if implicit, is the persistence of paternal permission over women’s birth-giving power. As Boccia notes: ‘This situation demonstrates the incongruities of the language of rights and of law in regulating questions of relations between the sexes, both from the perspective of

1 Wendy Brown, Politics Out of History (Princeton, 2001), p. 149. 2 Donna Haraway, Modest_Witness@Second_Millennium.FemaleMan_Meets_OncoMouse. Feminism and Technoscience (New York, 1997), p. 189. 3 ‘Il controllo sul potere di generare e non generare, inscritto nel corpo femminile, è da sempre e tuttora il cuore del conflitto tra i sessi.’ (Maria Luisa Boccia, La differenza politica: donne e cittadinanza (Milan, 2002), p. 19). 4 For a perceptive philosophical analysis of this phenomenon, see Adriana Cavarero, In Spite of Plato: A Feminist Rewriting of Ancient Philosophy (Cambridge, 1995).

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embodied subjectivities and of rationality.’5 In Italy, the history of how human reproduction has been regulated demonstrates the real problem of obtaining reproductive rights in a patriarchal legal context. In this book I examine such questions against the background of the development of legal governance of human reproduction in Italy over the past thirty years. This period coincides with what appear to be two contradictory movements: on the one hand, the legalization of abortion provision and, on the other, the introduction of restrictive regulation of the area of assisted reproductive technologies. The central question I seek to address is how a society, which in the 1970s was slowly and painfully moving away from a dominant heteropatriarchal conception of family relations, succeeded in introducing a law in 2004 which gave symbolic recognition to the human embryo and greatly restricted access to assisted reproductive services. The answer is a complex one involving the relationship between state and civil society, the transformation of the party political system in the 1990s, the cohabitation within society at large and within legal documents of competing ethical worldviews, the rebirth of the Roman Catholic Church as a mass political force,6 the decline of feminism as a mass political movement, and changing conceptions of women’s status within Italian society. The case of Italy is unique and yet also evokes many questions of enormous current import for other societies in relation to how one can or should govern bioethical issues. The Italian experience in relation to the governance of human reproduction forces us to ask how law can accommodate different views on bioethical policy in ‘multiethical’7 societies. Can there be such a thing as impartial governance of such issues in a state that, despite transformations, remains symbolically and materially masculine and culturally Catholic?8 Successive Italian governments have tended to avoid addressing issues of bioethical controversy in an objective and honest manner due to a fear of a conservative backlash and a subsequent loss of political support. As Stefano Rodotà has so astutely pointed out in this regard: today we live in an era characterized by a proliferation of values and of disputes about how to give recognition to pluralism … Can one make [such values] live together, avoiding the transformation of such disputes into a more serious conflict? … In this regard, vehement demands are made for certainties at any cost, and of course, short-cuts [are made]. This

5 ‘questa vicenda mostra le incongruenze del linguaggio dei diritti e del diritto nel regolare le questioni dei rapporti tra i sessi, nella prospettiva delle soggettività incarnate e della razionalità.’ (Maria Luisa Boccia, La differenza politica, pp. 19–20). 6 For an analysis of the relationship between the contemporary Italian State and the Vatican, see Mark Donovan, ‘The Italian State: No Longer Catholic, no longer Christian’, West European Politics, 26 (2003): 95–116; and Sandro Magister, Chiesa extraparlamentare (Napoli, 2001). 7 This term is borrowed from Enzo Bianchi, who used it to describe Italian society in an interview on the radio programme Fahrenheit, Monday 10 July 2006, Rai Radio 3, available at www.radio.rai.it/radio3/fahrenheit/mostra_evento.cfm?Q_EV_ID=182142. 8 For an illuminating analysis of this theme in relation to the question of violence against women in contemporary Italy, see Sonja Plesset, Sheltering Women: Negotiating Gender and Violence in Northern Italy (Stanford, 2006).

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leads to the imposition of an incontestable Truth, by way of the law … in this way the law takes on an authoritarian hue, and appears as an imposition and not as a reflection of a shared feeling.9

This sums up very well the manner in which bioethical issues have been dealt with, or rather not dealt with, in Italy over the past twenty years. Instead of attempting to gain community consensus on an issue and working towards a solution that expresses the values of all sectors of society, governments have tended to see such matters in very simplistic terms, either they are morally supportable or morally suspect. In all this the pluralist State’s moral guide has been the Vatican. Focusing particularly on the period between 1978 and 2004, which began with the introduction of a liberal abortion law and which ended with a restrictive law on assisted reproduction, I analyse the reasons why such contrasting models came to simultaneously inhabit the legislative space. Why do women’s bodies continue to be sites of ideological conflicts about nation, community and identity at the end of a period of substantial progressive change in the dynamic of gender relations in Italy? In contemporary Italy it is fair to say that a model of the family that one could define as traditional, that is the heteropatriarchal family unit, persists both at the level of everyday lived reality and at the level of public policy, and has been very difficult to transform. In the opening months of 2007 the question of the acceptable family model for public policy purposes has arisen in the context of the centre-left government’s attempt to introduce legislation on the legal rights of same-sex couples. Vehement opposition to such a proposal has come from the Roman Catholic hierarchy and conservative politicians. Both the Church and conservative politicians see such a development as an affront to traditional family values. This is but one example of how such a traditional family model is so deeply embedded in the political and social fabric. There exists in contemporary Italy a complex mingling of progressive and traditionalist narratives on the family. This allows the simultaneous projection of the State as pluralist in the texts of law and the persistence of a deeply ingrained patriarchy and cultural and religious homogeneity. The patriarchal familial narrative is but one of many narratives which exists simultaneously in Italian society. One major counter-narrative in modern Italy has been that provided by mass feminism. Italian feminism played a key role in bringing about the re-conceptualization of the position of woman in society. As well as playing a part in lobbying for legal reforms, the movement created a means of voicing female experience in the public sphere. In so doing it provided a powerful critique of the limits of legal reform 9 Stefano Rodotà, La vita e le regole: Tra diritto e non diritto (Milan, 2006), p. 16. The original reads: oggi viviamo in un tempo caratterizzato da un politeismo dei valori e da controversie intorno al modo di dare riconoscimento al pluralismo … Si può farli convivere, evitando che la controversia si trasformi in conflitto durissimo? … Ecco, allora, che si fa forte la richiesta di certezze a ogni costo, e quindi di scorciatoie, che portino alla imposizione di una verita indiscutible, attraverso una norma giuridica … … così il diritto assume tinte autoritarie, si presenta come una imposizione, e non come il riflesso d’un sentire commune.

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within a patriarchal legal context. Despite legislative reform in relation to issues like divorce, abortion and rape, it was clear that this alone was not sufficient to displace a patriarchal notion of societal formation. Bioethics: Between Ethopolitics and Vitapolitics When individuals in liberal democratic societies attempt to win greater control over decision-making about their bodies, they are engaged in an unequal power struggle with the state. In order to win more freedom they must of necessity go before the law in order to assert these rights or lobby the government for a change in legislation. This active intervention by the individual to win such power has been defined by social theorist Nikolas Rose as biological citizenship.10 This term refers to the phenomenon whereby individuals increasingly define their citizenship in terms of their rights to life, health and cure. According to Rose, politics is no longer about the direct management of life through public health and other government interventions, but has moved towards a form of individual governance of the self. Rose refers to this form of politics as ethopolitics: By ethopolitics I mean to characterize ways in which the ethos of human existence – the sentiments, moral nature or guiding beliefs of persons, groups, or institutions – have come to provide the ‘medium’ within which self-government of the autonomous individual can be connected up with the imperatives of good government. In ethopolitics, life itself, as it is lived in its everyday manifestations, is the object of adjudication. If discipline individualizes and normalizes, and biopower collectivizes and socializes, ethopolitics concerns itself with the self-techniques by which human beings should judge themselves and act upon themselves to make themselves better than they are. While ethopolitical concerns range from those of lifestyle to those of community, they coalesce around a kind of vitalism: disputes over the value to be accorded to life itself, ‘quality of life’, ‘the right to life’ or ‘the right to choose’, euthanasia, gene therapy, human cloning and the like.11

There has been a shift from state governance of the individual to a kind of individual self-governance or care of the self, in which the agonised self must act to change its situation. In such a model, according to Rose, individuals: ‘use their individual and collective lives, the evidence of their own existence … they demand civil and human rights … They call for recognition, respect, resources … control over medical and technical expertise.’12 Within the process of ethopolitics one can see both individual and collective self-actualisation. As Rose observes: ‘In advanced liberal democracies, biological identity becomes bound up with more general norms of enterprising, self-actualizing, responsible personhood’.13 Rose’s ethopolitics allows us to visualize the potential of deliberative participative politics within the context of bioethical policy-making. 10 1-30. 11 12 13

Nikolas Rose, ‘The Politics of Life Itself’, Theory, Culture & Society, 18/6 (2001): Ibid., p. 18. Ibid., p. 19. Ibid., p. 18.

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In Italy, particularly in the 1970s this form of politics enjoyed considerable success in the form of the mass feminist movement. This feminist ethopolitics enabled the reshaping of gender relations. Within the Italian feminist movement a rich and unique thought of sexual difference was developed.14 This thought coming as it does from the experiences of liberation struggles is intimately linked to political action. In recent decades this deliberative ethopolitics has been eclipsed by what one could term a rigid top down vitapolitics. In this politics the embryo has been constructed by conservative lobby groups as an active individual agent. This highly problematic construction reduces women to mere vessels to reproduce the nation. The embryo as virtual citizen, in the sense of its potential for citizenship, and in its potential to form a community based on a philosophy of Life, provides a point of suture for the Roman Catholic Church’s narrative of a nation in moral decline. In this discourse the embryo must be protected at all costs, as its termination would rob the nation of future life, placing the nation in peril as well as the embryo. This converging of the nation with the embryo is a masterstroke of traditionalist symbolizing. It constructs a discourse in which the nation supports an ideology of life but which is unspoken and unimpeachable. It becomes the default setting against which those who would oppose it are immediately constructed as enemies of the nation. Women who seek control over reproductive decisions by availing themselves of pre-implantation genetic diagnosis, or who attempt to conceive with donated gametes, or who wish to terminate their pregnancy interrupt this vitalist national narrative. According to such a narrative, women act selfishly in putting their wishes before this potential life. This campaign has succeeded in transforming the way in which reproductive medical services are governed by restricting existing reproductive freedoms. This vitapolitics is not a politics of empowerment but a politics of entrapment in an imagined natural order. In this paradigm, as Barbara Duden notes: ‘flesh is extinguished and replaced by a disincarnate notion’.15 This vitapolitics does not refer to life in the material sense but to what Duden has called ‘synthetic life’.16 For Duden, ‘synthetic life’ has become the idol of the present, not only for the Church but also for ethicists, politicians, journalists and advertising executives, amongst others. In this new ideogram ‘life’, Duden detects a wider concern with endangered life. She observes that ‘this idolatry of life’ is a consequence of ‘a surreptitious shift in social and medical management concerns about the importance of “survival”’.17 Duden sees two cult objects as exemplifying this concern with survival, the planet Earth and the foetus. Each in their own way reflects a concern about mortality, survival and

14 For a full analysis of the development of sexual difference thought in contemporary Italy, see Carole Lazzaro-Weis, ‘The Concept of Difference in Italian Feminist Thought: Mothers, Daughters, Heretics’, in Graziella Parati and Rebecca West (eds), Italian Feminist Theory and Practice: Equality and Sexual Difference (Madison, 2002), pp. 31–49. 15 Barbara Duden, Disembodying Women: Perspectives on Pregnancy and the Unborn (Cambridge, MA, 1993), p. 100. 16 Ibid., pp. 99–106. 17 Ibid., p. 110.

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extinction. In this sense, she notes that: ‘The four-letter word [life] is meaningless and loaded; it can barely be analysed, yet it is a declaration of war.’18 Likewise, the embryo has become a sign of immortality, an ideal site onto which to project desires to live on, to survive.19 For the religious right the embryo becomes invested with great symbolic value. The embryo is seen as the promise of the survival of the heteropatriarchal family narrative. The notion of embryo citizenship includes the what of the embryo, thus further undermining the unique who of the female citizen. It creates a model of citizenship based on the future interests of an unborn entity and diminishes the current interests of individual women. In such a discourse, woman is, to paraphrase Drucilla Cornell, reduced to the position of: ‘a what … not a who, a self’.20 This sacrificial discourse is integral to the traditionalist view of the family whereby the woman as mother and primary carer is duty-bound to sacrifice her autonomy for the sake of family unity. This rhetoric fits into the traditionalist model of the family, which was accepted unquestioningly by political and legal elites for the first thirty years of the post-war Italian Republic. As Andall has observed: ‘Family law in Italy has traditionally been concerned with protecting the collective interest of the family as opposed to the interests of individual members within it.’21 The lingering longing for such a model is strong in many sectors of Italian society, and the campaign to put the issue of the ‘sanctity of life’ on the political agenda tapped into and harnessed this constituency. The embryo was employed as a weapon in the war against what the Church calls the ‘culture of death’. The ‘culture of death’ represents for the Church everything that for it impedes the growth and flourishing of Life. This politics of Life itself became for the Church its new weapon in its fight against what it called ethical relativism. The Church began to issue declarations on the immorality of experimentation on embryos and of IVF. In the campaign against the ‘culture of death’ the Pope uses the embryo as a weapon. It stands for the ‘culture of life’, which will reinstitute Catholic values. This is a politics which values the yet to come over the here and now, purgation over pleasure, the transcendent over the material.22 As part of this strategy, the Italian Conference of Bishops (Conferenza Episcopale Italiana) has, since the 1990s, engaged in re-Catholicising Italy. Italy, for the Church, needs to become the territory of a Catholic mission, just as once the colonial territories were to be Christianised. This new crusade is of course an admission of the failure of the theocratic model, a desperate attempt to show that it is possible to return Italy to some form of imagined status quo ante of Catholic tradition. This crusade is built on a number of pillars: Family, Education, Life and Work. It is an attempt to promote a 18 Ibid., p. 104. 19 It is interesting to note that the emergence of the embryo as a cult object coincided with the era of ‘post politics’ in Italy. See further Donovan, 2003. 20 Drucilla Cornell, ‘Dismembered selves and wandering wombs’, in Wendy Brown and Janet Halley, (eds), Left Legalism/Left Critique (Durham, NC, 2002), pp. 337–372, p. 350. 21 Jacqueline Andall, ‘Abortion, Politics and Gender in Italy’, Parliamentary Affairs, 47 (1994): 238–251, p. 248. See also Miriam Mafai, ‘L’obbligo della soffrenza’, La Repubblica, 22 Settembre (2005):1 and 20. 22 See further on the Roman Catholic Church’s political campaigns, Marco Damilano, Il partito di Dio: La nuova galassia dei cattolici italiani (Torino, 2006).

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national imagined community based on Catholic social justice teachings. This model stresses the role of woman as mother and the need to reproduce the nation along traditional gender lines. As Sandro Magister has noted: Catholicism is in fact ready to take up the challenge in its entirety. This is a challenge ‘which relates to its very capacity not only for survival in this society and culture, but also its capacity to permeate and guide its future’. With Italy as a guiding country, ‘to which Europe and the world look and expect much’: a testing ground ‘for the future of Catholicism and, in a certain sense, of all Christianity’.23

The Church has consistently constructed woman as being synonymous with the private sphere. In 1987, the papal instruction Donum Vitae, penned by the then Cardinal Ratzinger, now Pope Benedict XVI, which outlined the Catholic Church’s position in relation to artificial reproductive technologies, noted that the legitimate desire for a child should not be seen as a right to have a child at all costs. That would be to treat such a child as merely a means to an end. In the 1995 papal encyclical Evangelium vitae, which called for the protection of life, IVF was seen as contrary to Church teaching because it constituted a danger to the embryo. If the embryo was seen as an entity deserving of unconditional respect in Church teachings, women were seen in an altogether different light. In 2004, Cardinal Ratzinger was the key drafter of the condescending Papal Letter to Women.24 This document reveals current Vatican thinking on the role of women in society. The papal letter referred to the conflict between women’s biological role and her role in the public sphere. It mused upon how an effective balance could be struck, but worried mostly about the way in which women’s role as mother and carer was being diluted by wider changes in society. In the letter the following observation is made: the obscuring of the difference or duality of the sexes produces enormous consequences at different levels. [Feminism] which favoured equal opportunities for women, freeing her of every biological determinism, has in fact inspired ideologies which promote, for example, the questioning of the family in its natural two parent form, made up of a mother and a father, equalising homosexuality and heterosexuality, a new model of polymorphic sexuality.

Here the Vatican calls up the excessive spectre of what it calls ‘polymorphic sexuality’ in its declaration of war on feminism in the name of Life itself.25 This 23 ‘… il cattolicesimo è invece pronto a raccogliere intera la sfida. Una sfida “che riguarda la sua capacità non soltanto di sopravivere in questa società e cultura, ma anche di impregnarle e di orientare il loro divenire”. Con l’Italia come paese guida, “al quale si guarda e dal quale molto si attende in Europa e nel mondo”: terreno di prova “della capacità di futuro del cattolicesimo e in certa misura di tutto il cristianesimo”.’ (Sandro Magister, Chiesa Extraparlmentare (Napoli, 2001), pp. 105–106.) 24 Congregazione per la dottrina della fede, Lettera ai vescovi della Chiesa cattolica sulla collaborazione dell’uomo e della donna nella chiesa e nel mondo (Vatican City, July 31 2004). 25 Indeed as Janet Halley observes: ‘the current Pope has devoted a substantial portion of his time to refuting feminism. He takes Butler’s Gender Trouble seriously as a political danger. A battle for hearts and minds is under way and feminism is one of the contenders.’

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spectral phenomenon is seen as disruptive of the two parent heterosexual family model. The Church’s language here characterises the feminist movement as being responsible for the decline of the heteropatriarchal family. In its rhetoric the Church accords more importance to woman’s biologically determined role as reproducer and carer rather than as autonomous citizen. Woman is recognised as being different but not equal. For the Vatican, woman is imagined, to borrow the words of Drucilla Cornell, as ‘already marked in [her] difference through [her] symbolic devaluation. The problem [is] not that difference [is] recognised, but that it [is] recognised as not being of equivalent value.’26 This politics of ‘Life’ is premised on the policing of women’s desire, which, in such a discourse, is an unstable and chaotic element that disrupts the Church’s disciplinary politics. In this discourse, in which citizenship is premised on denial and self-sacrifice for some transcendent cause, the construction of woman as mother plays a vital symbolic role. For traditionalist anti-abortion groups this politics of embryonic life acts as a means of suturing together a nation that for them no longer has a unifying ideology. The embryo in this discourse becomes the objet petit a, that which will suture together Italy’s fragmented self. This politics of ‘Life’ requires that the embryo is represented as a viable proto-citizen deserving of legal protection and rights, and as one to whom duties are owed. This legal fiction of constructing Life as in being from the moment of conception depends for its success on constructing a notion of the embryo as a person in danger of death. As Lauren Berlant has put it, in her analysis of anti-abortion politics in America, but which could equally well apply to the way in which embryo politics has developed in Italy: The success of the concept of foetal personhood depends on establishing a mode of ‘representation’ that merges the word’s political and aesthetic senses, imputing a voice, a consciousness, and a self-identity to the fetus that can neither speak its name nor vote. This strategy of nondiegetic voicing has two goals: (1) to establish the autonomy of the fetal individual; and, paradoxically, (2) to show that the fetus is a contingent being, dependent on the capacity of Americans to hear as citizens its cries as a citizen for dignity of the body, its complaints at national injustice.27

This creates a narrative of citizenship in which the ideal Italian citizen is literally virtual, living for the future but never in the present. The fully realised female citizen is deprived of agency so that the embryo, incapable of agency, can be given the symbolic status of honorary agent to come. If the embryo is recognised as a being capable of having rights, it has, unlike fully formed human beings, no concomitant obligations. This creates a literally and symbolically split subject, one subject in two bodies. This strange relationship or duty to the other becomes particularly (Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, 2006), p. 22). 26 Drucilla Cornell, ‘Bodily Integrity and the Right to Abortion’, in Austin Sarat and Thomas Kearns (eds), Identities, Politics and Rights (Ann Arbor, MI., 1995), pp. 21–84, p. 54. 27 Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham, NC, 1997), p. 98.

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problematic when the other is not yet born, reducing the life of the mother to that of the not yet dead rather than a fully valued living citizen. This strange reinterpretation of the notion of rights discourse creates a case of subjectivity as purgatory for many women. As Lealle Ruhl has pointed out in the context of the debate on abortion and the splitting of subjectivity between mother and foetus: In liberal theory, rights are irretrievably tied to obligations; an individual gains certain rights and with them corresponding obligations. But how can the foetus have obligations? Indeed, what we witness in this description of pregnancy is not two liberal subjects in one body, but rather one liberal subject in two bodies. The pregnant woman has all of the obligations of a ‘normal’ or typical liberal subject but none of the rights. The fetus, on the other hand, has all of the rights of a typical liberal subject but none of the obligations. A strange situation indeed.28

This strange situation reflects a petty pragmatic politics that does not want to engage in real political debate on important social issues, an absurd image of what true democratic deliberation should be. The Church’s crusade was aided ironically by the disappearance of the Christian Democratic party after the Tangentopoli scandals of the early 1990s.29 Now that the Church was not tied to one political party, it could act as an independent political 28 Lealle Ruhl, ‘Disarticulating Liberal Subjectivities: Abortion and Fetal Protection’, Feminist Studies, 28 (2002): 37–60, p. 39. 29 The Tangentopoli scandals broke in the early 1990s with the revelations of widespread political corruption. It was discovered that the main political parties, the Christian Democrats and the Italian Socialist Party (Partito Socialista Italiano), had engaged in taking large amounts of illegal donations from private businessmen in return for political favours. There was widespread political collusion with businessmen who required favours such as tax breaks, or who needed help in bypassing planning laws. This was also coupled with the paying off of judges to delay or suspend trials for financial corruption. This systemic corruption was part and parcel of the Italian party system of the 1970s and 1980s. Political parties had become increasingly dependent on private funding for political success. The unveiling and investigation of the scandal, the so-called ‘Clean Hands’ (Mani Pulite) investigations of 1992–1994, led to the bankruptcy and decline of the main parties, the Christian Democrats and the Socialist Party. See further Donatella Della Porta and Alberto Vannucci, Un paese anormale: Come la classe politica ha perso l’occasione di Mani Pulite (Rome, 1999). The ramifications of Tangentopoli and Mani Pulite led to a wholesale realignment of the party political system. The realignment led to the emergence of Forza Italia, led by Silvio Berlusconi who promised a new kind of politics, in which he envisaged running the state like one of his many corporations. This of course was merely a refinement of the old corrupt party system into a new type of anti-politics, which saw the public interest turned into personal political advancement, and saw corruption becoming the norm yet again. Other parties that emerged after Tangentopoli included Alleanza Nazionale (National Alliance), the former neo-fascist party; the Olive Tree Alliance (Ulivo), made up, inter alia, of former Christian Democrats, Communists and Socialists; and the Daisy Alliance (Margherita), made up again of a motley alliance of former Christian Democrats, Socialists and Communists amongst others; and the Christian Democratic Union (Cristiani Democratici Uniti), to name but a few. See, for a fuller description of the party system, Martin Bull and James Newell, Italian Politics: Adjustment Under Distress (Cambridge, 2005), pp. 52–59.

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player. It became in Sandro Magister’s words the ‘extra-parliamentary Church’.30 In this new guise, and under the leadership of Cardinal Camillo Ruini, the Church began to effect real influence on political decision-making. The new party system was made up of reincarnated versions of the former socialist, communist, Christian Democratic and neo-fascist parties. Despite diverse ideologies and allegiances, these groupings had in common an underlying allegiance to Catholic thinking. This made it easier for the Church to have a swathe of support across the party spectrum. In spite of its strong official pronouncements on assisted reproduction, the Church’s initial line was one of caution in relation to introducing legislation on the topic, based on the justification that any legislation, restrictive or liberal, would give symbolic recognition to IVF. Conceiving Life in Law The manner in which decisions in relation to the regulation of bioethical matters have been taken in Italy since the foundation of the post-war republic has been haphazard. Initially the default setting on matters of ethical controversy, such as abortion for example, was the naturalist approach of Roman Catholic theology, which coincided with a cultural attachment to patriarchy. Both the secular state and the Church shared a common antipathy to liberalising issues in the area of reproductive politics.31 The spur for change came from social movement activism, particularly that of the women’s movements in the 1960s and 1970s which put on the agenda the issue of women’s reproductive freedom leading to the introduction of legalised abortion in 1978. These changes have been tempered by the persistence within the political culture of a strain of thinking that identifies overtly with Vatican thinking. This cohabitation with the Church spans the political spectrum encompassing both theo-conservatives (teocons)32 and theo-democrats (teodems).33 This has had a detrimental impact on the liberalisation of matters in relation to access to reproductive services in recent years. With the blurring of the lines between the secular and the religious in this regard, a situation has arisen where a true representative politics is not being advanced in matters of bioethical controversy.34 In this regard it would seem that the Vatican’s continuing crusade to uphold what used to be called the ‘sanctity of life’ but is now, in a more media savvy age, being called the ‘culture of life’, (after all think the Vatican spin doctors how can people be against life?) is being successfully 30 Sandro Magister, Chiesa extraparlamentare (Napoli, 2001). 31 See further Lesley Caldwell, Italian Family Matters: Women, Politics and Legal Reform (London, 1991). 32 To be found broadly on the right of the political spectrum. 33 To be found amongst the ranks of centre-left politicians. 34 This is true of all aspects of Italian politics. This was to be seen particularly clearly during the years of Silvio Berlusconi’s period in office from 2001 to 2006. See further Paul Ginsborg, The Politics of Everyday Life: Making Choices, Changing Lives (New Haven, 2005), pp. 1–11, and Paul Ginsborg, Silvio Berlusconi: Television, Power and Patrimony (London, 2004). Indeed Berlusconi can be seen as the apotheosis of the ‘anti-politician’, who sees representative democracy as a means only for personal gain.

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translated into social policy. We have, as a result, a curious merging of the religious and the secular under a common ‘culture of life’. This ‘culture of life’ is of course a catch-all rhetorical device for introducing a de facto theocratic state in a de jure pluralist democracy.35 This has enormous implications for individual freedom. In Chapter 2 I analyse why Italian society has found it difficult to shed the paradigm of patriarchal familialism. The post-war liberal democracy may have changed the relationship between the state and the male citizen but it did not change to the same degree the relationship between the state and the female citizen. The laws that trapped women in the private sphere in large part dated from the fascist period. In the new Republic these misogynist laws were not immediately repealed. The political elite continued to uphold a patriarchal social model. It was only as the result of concerted civil society pressure from the women’s movement from the 1960s onwards that this situation began to be transformed. The legal model of the family moved from one based on the primordial status of the father within the family to a relational model that took account of the interests of all family members. Since the progressive movement of legislation in the 1970s and 1980s, a countertendency has emerged in the past decade. This has taken the form of an alliance between the Roman Catholic Church and politicians across the party spectrum. This theo-conservative lobby demands laws that promise a return to the hierarchal heteropatriarchal family model and which restrict sexual freedom, abortion, gay rights, and multiculturalism. This tendency desires to return to the dominion of the father’s law, potestas patria.36 The persistence of patriarchy is evident despite the cultural and legal changes in relation to women’s position in society since the 1960s. Despite a diversity of family models, the cultural attachment to the notion of the heteropatriarchal family model remains strong in many quarters of Italian society. With the introduction in 2004 of very restrictive legislation in relation to assisted reproduction one can observe the successful operation of the theo-conservative backlash against the disappearance of the traditional family model. Chapter 3 analyses the debates over abortion reform in the 1970s in what turned out to be a process of questioning accepted modes of social and political organisation. The struggle for the legalisation of abortion led to intense and sophisticated exchanges on whether liberal rights discourse could in fact change women’s material and symbolic position in a society that remained fixed within a masculine power structure. When the abortion law was introduced in 1978, it could not be seen as endorsing full reproductive freedom. Moreover, the law demonstrated that the power of reproductive choice was not ultimately in the hands of women. The law as a means of regulating abortion did not consider the real issue of reproductive freedom. In addition, the law provoked a bitter counter-reaction from traditionalist groups leading to a referendum on its repeal in 1981. The law itself survived following the 35 See further, Damilano, Il partito di Dio. 36 The term refers to the power of the father within the household in Roman Law. In Roman law, the family was under the tutelage of the paterfamilias or head of the household. See further Eva Cantarella, ‘Homicides of Honor: The Development of Italian Adultery Law over Two Milennia’, in David Kertzer and Richard Saller, (eds), The Family in Italy: From Antiquity to the Present (New Haven, 1991), pp. 229–244.

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referendum, but the whole episode demonstrated a societal divide between traditional Roman Catholic views on the family and more progressive views on reproductive autonomy that could not be bridged by law reform alone. In Chapter 4, I analyse the evolution of the conservative resistance to new models of reproductive freedom. A revitalised pro-life movement with the powerful backing of the Church has campaigned assiduously for the repeal of the abortion legislation and has along the way tried its best to sabotage its operation. This vitapolitics attempts to turn women into reproductive units and give voice to the embryo, to represent its interests as greater than a woman’s and to make it more real, in representational terms, than the woman. Following the defeat in the referendum to repeal part of the abortion law the traditionalist lobby began to change its focus to call more strenuously and in a more sustained manner for the protection of human life from conception. The cultivation of a mass politics of embryonic life became the counterstrategy of the Church and lay conservative groups in the 1980s and 1990s. This would have severe consequences for the governance of new reproductive technologies and the question of reproductive freedom. Chapter 5 looks at the success of such a strategy with the recently introduced law on assisted reproduction.37 The new law prohibits testing of embryos for research purposes, freezing embryos and outlaws pre-implantation diagnosis for preventing genetically transmitted diseases. The law also prohibits donor insemination, denies access to assisted reproductive technologies to single women and ordains that no more than three eggs may be fertilised in vitro and that the resulting embryos be transferred to the womb simultaneously. As well as flying in the face of accepted societal norms of self-determination the text of the law paints a bleak picture of woman as reproducer. It excludes other familial formations, such as gay and lesbian couples from the provision of reproductive technologies and has at its heart an ideal of the family that is at odds with the current societal reality. This development has come about as the result of a particular conflation of circumstances, namely, a successful campaign on the part of the Church and lay Catholic interest groups which placed the issue of the sanctity of embryonic life on the legislative agenda; the lack of any ideological commitment on the part of the main political parties in this area, the continued reliance of politicians on Church support, and the gradual weakening of the influence of feminism as a mass political movement. This law can of course be looked on as an anomaly, an attempt by a paternalistic elite in concert with the still vital political force of the Vatican to produce a manifesto for a traditional Roman Catholic conception of the family. However, on the other hand, it can be seen as an intriguing case study in the way in which patriarchal institutional power can overcome accepted norms of autonomy in a pluralist society. The response of the Italian government to the regulation of assisted reproductive technologies refused to see regulation as a form of facilitation for scientific development. It took a dogmatic stance influenced by conservative Roman Catholic social teaching. This stance refused to recognise the changed status of the family 37 Legge 19 febbraio 2004, n.40, “Norme in materia di procreazione medicalmente assistita”, (Gazzetta Ufficiale n.45 del 24 febbraio 2004).

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and scientific reality in this regard. The law falls into the model of what Roger Brownsword has called ‘regulated prohibition’.38 This prohibition is brought about by the particular socio-cultural influences that the government chose to acknowledge, in this case the views of the Roman Catholic Church. The law had as its primary purpose the signalling of a particular notion of the family. In such a case we are faced with the use of law as a manifesto for another purpose. The law did not, unlike the English Human Fertilisation and Embryology Act 1990, attempt to provide an objective legal framework for the governance of assisted human reproduction. Chapter 6 concludes the study by looking at how one might formulate a model in which reproductive rights might be secured. The chapter looks at alternative ways of framing reproductive citizenship. The Italian experience challenges pluralist models of bioethical governance. In the light of such a challenge I examine the possibility of achieving balanced bioethical policy in modern multi-ethical states.

38 Roger Brownsword, ‘Regulating Human Genetics: New Dilemmas for a New Millennium’, Medical Law Review, 12 (2004): 14–39, p. 17.

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Chapter 2

Law, Gender and Nation in Contemporary Italy The model of gender identity may have changed … in law and in the popular consciousness … but the ambiguity of the Constitution still serves to explain some of the deep conflicts in Italy over the social construction of women.1

Introduction Since its inception in 1946 the Italian Republic has proclaimed itself, in its official rhetoric at least, to be a liberal and pluralist state.2 However, the reality is more complex than this in that a more traditionalist vision of a heteropatriarchal and Catholic nation has lived together with the official pluralist vision of the State in the post-war period.3 Italian society, has, despite appearances to the contrary, found it difficult to shed the paradigm of patriarchal familialism. The end of the fascist regime did not lead to the disappearance of the symbolic legal construction of women as reproducers of the nation.4 The fascist state itself, as exemplar of mass biopolitical organisation, cannot be excluded from any discussion of contemporary Italian discourse on human reproduction and the construction of gender in law. The 1 Franca Bimbi, ‘Gender, ‘gift relationship’ and welfare state cultures in Italy’, in Jane Lewis (ed.), Women and Social Policies in Europe: Work, Family and the State (Aldershot, 1993), pp. 138–169, p. 148. 2 The Italian Republic was inaugurated after a referendum in June 1946. As a result of the referendum the monarchy was dissolved. Following the establishment of the Republic, a Constituent Assembly was instituted in order to draw up a Constitution for the new Republic. The Constitution was promulgated in 1948. 3 Indeed this tension is contained within the founding legal document of the Italian Republic, the 1948 Constitution. The Constitution can be seen as a metaphor for post-war Italian society given that it contains both liberal and traditionalist narratives, which live together uncomfortably. This tension between liberal and traditionalist narratives has not been as easily contained in wider Italian society over the past sixty years. See further Paul Ginsborg, A History of Contemporary Italy: Society and Politics, 1943–1988 (London, 1990). 4 During the period of the fascist regime (1922–1944), penal sanctions were introduced for those who advocated birth control, abortion was classified as a crime, and husbands were given the duty of correcting the behaviour of their wives. See further Lucia Chiavola Birnbaum, Liberazione della donna: Feminism in Italy (Middletown, Connecticut, 1986), pp. 31–40. The fall of the fascist state led to a bitter civil war, which created the political divisions that formed the basis for political life in Italy in the post-war era. See further, Ginsborg, A History of Contemporary Italy.

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fascist regime initiated a systematic demographic policy utilising a public rhetoric that associated national prosperity and strength with a high birth rate. The spectre of the declining birth-rate was often referred to in fascist propaganda. Mussolini launched this policy in his infamous ‘Ascension Day’ speech of 26 May 1927.5 For Mussolini, reproduction was a national duty, which would have the practical effect of supplying soldiers as well as more citizens to populate Italy’s colonies in Eritrea, Libya and Somalia. The fascist state had attempted to project a national narrative in which the nation was constructed as both fecund and virile. In doing this it employed the stereotypical tropes of the virile active male and the woman who reproduced for the sake of the nation.6 The state saw the male as the true bearer of reproductive power in its rhetorical construction of the nation.7 In this sense, the notion of the male as fount of reproductive power is the point of commonality between both the fascist and the post-war liberal republic. In attempting to shape this productive nation, the fascist administration created a legal framework in which women were assigned the role of secondary citizens whose place was in the home. In addition to the criminalisation of birth control and abortion, the regime also introduced disincentives such as a tax on bachelors8 and incentives such as ‘birth bonuses’ for women who gave birth regularly.9 This policy did not have the success that Mussolini anticipated. There was widespread resistance on the part of the citizenry to this intrusion into and control over private life.10 La legge è la famiglia: Constitutional Family Values and the Persistence of Patriarchy After the fall of fascism, public policy in relation to gender and family relations did not undergo a profound transformation. As John Foot has correctly observed: ‘strong elements of legal continuity with fascism remained despite the reintroduction of democracy and the rights and liberties contained in the Constitution’.11 The post-war liberal democracy might have changed the relationship between the state and the male citizen but it did not change the relationship between the state and the female citizen. Patriarchy has no ideological allegiances. In fact, the patriarchal model of

5 For a discussion of the ‘Ascension Day’ speech see David Horn, Social Bodies: Science, Reproduction, and Italian Modernity (Princeton, 1994), pp. 46–47. 6 See further Barbara Spackman, Fascist Virilities: Rhetoric, Ideology, and Social Fantasy in Italy (Minneapolis, 1996). 7 For a detailed analysis of fascist social policy in relation to women see Victoria De Grazia, How Fascism Ruled Women: Italy 1922–1945 (Berkeley, 1992). 8 Horn, Social Bodies, pp. 77–79. 9 Ibid., pp. 89–90. 10 See further Elizabeth Krause, ‘Forward vs. Reverse Gear: The Politics of Proliferation and Resistance in the Italian Fascist State’, Journal of Historical Sociology, 7 (1994): 261– 288. 11 John Foot, Modern Italy (Basingstoke, 2003), p. 65.

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social relations remained strong and supported by law in the immediate post-fascist era. As Nadia Maria Filippini has observed: The fall of fascism did not end this [patriarchal] legislative framework. Many laws were approved by the new [post-fascist] Italian Republic, which modified the relationship between the State and its male citizens but not that between the State and its female citizens. This latter relationship was still organised on the basis of the traditionalist model of controlling the sphere of female sexuality.12

Fascist laws in relation to abortion, adultery, contraception, divorce and rape remained on the statute books for several decades after the introduction of the Constitution of the new Italian Republic in 1948. In the opening decades of the new post-fascist Italian Republic, the dominant model of family relations was one of paternal privilege and permission. The fascist era Civil Code (Codice Civile) of 1942 remained in force and provided the basis for the continued legitimation of the husband as head of the household. Within the Civil Code of 1942 the husband was designated the head of the family and his wife was obliged to accompany him wherever he chose to set up residence.13 Article 145 of the Civil Code made it clear that the husband has ‘the duty to protect the wife, keep her with him and furnish her with whatever is required for the necessities of life, in proportion to his means’. This model of the padre padrone remained intact and unchallenged by legislators and judiciary alike in the opening decades of the postfascist republic.14 There was an underlying tension between de jure pluralism and de facto patriarchy. While the new Constitution of the Republic upheld the principle of equality, the cultural resistance of political and judicial elites helped to maintain a situation in which women were seen as inferior parties to marriage. Consequently, the Constitution appeared as a strange textual fantasy of pluralism in a state that was, in reality, profoundly conservative. With the retention in place of the fascist judiciary in the post-fascist period, the mentality and operation of the law remained tied to a patriarchal construction of social relations. This exposes a common theme across political regimes, the desire for masculine symbolic power and the fear of usurpation of such power by women. This conflict came out clearly in the debates of the Constituent Assembly, which was set up in 1946 to draft the new Constitution of the Italian Republic.15 The Constituent Assembly was made up of representatives of all political parties and deeply divergent 12 Nadia Filippini, ‘Il corpo dominato e la personificazione dell’embrione: una prospettiva storica’, in AA.VV., Un appropriazione indebita: L’uso del corpo della donna nella nuova legge sulla procreazione assistita (Milan, 2004), pp. 97–112, p. 102. 13 Article 144 of the Civil Code of 1942. 14 The father as ultimate source of power within the family, literally the master of the household. For a graphic treatment of this phenomenon, see the biographical account by Gavino Ledda, Padre Padrone: L’Educazione Di Un Pastore (Milan, 1975), which addresses the destructive force of paternal power in a Sardinian household. 15 The Assembly met between 1946 and 1947 over eighteen months. See further Francesco Barbagallo, ‘La formazione dell’Italia democratica’, in Francesco Barbagallo, (ed.), Storia dell’Italia repubblicana: Volume 1: La costruzione della democrazia: dalla caduta del fascismo agli anni cinquanta (Torino, 1994).

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views were expressed in the course of its debates on the future character of the Italian state. Nonetheless, as a result of a mixture of expediency, political manoeuvring and misplaced compromises, the constitutional text, while outlining many liberal rights and paying token recognition to equality, also contained a traditional model of family relations. Despite the interventions of women during the Constituent Assembly, the gains in terms of true gender equality were minimal. The final draft of the Constitution, despite its principle of equality,16 did not improve the material position of women appreciably. The aspiration to equality for all proclaimed in the Constitution did not reflect the actual legal and social position of women in the new Republic. As Duggan has observed the political climate of the post-war period was: curiously schizophrenic … [and] … calls for change and renunciation of the immediate past jostled uneasily with many indications that a large part of the country’s former political baggage – both material and ideological – had simply passed unchanged into a new constitutional wrapper.17

The Constituent Assembly left much of the implementation of the Constitution’s provisions to Parliament. This led to a situation in which many of the Constitution’s provisions remained unimplemented for decades. The constitutional document itself, while containing the promise of pluralism, was resisted by the combined conservative forces of the judiciary and the ruling Christian Democratic Party. The Christian Democratic Party as the main Government Party in the immediate post-war period saw it as a duty to block the coming into being of large parts of the Constitution, particularly those elements that promised a more pluralist polity. For example, the establishment of the Constitutional Court (Corte Costituzionale) promised by the Constitution was delayed until the mid-1950s. The Constituent Assembly had decided that fascist period laws would not be repealed until the Constitutional Court, which was provided for in Articles 134–137 of the Constitution, came to decide on the constitutionality of such laws. Article 137 of the Constitution provided that the enabling legislation for the creation of the Constitutional Court was required to be passed by Parliament. This allowed the Christian Democratic Party to successfully block the passage of such an enabling act until 1953. Further delays led to the first judges of the Constitutional Court being appointed in 1955. The Court handed down its first judgment in 1956.

16 Article 3 of the 1948 Constitution contains the provision in relation to equality. It states: All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions. It is the duty of the republic to remove all economic and social obstacles that, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all workers in the political, economic, and social organization of the country. 17 Christopher Duggan, ‘Italy in the Cold War Years and the Legacy of Fascism’, in Christopher Duggan and Christopher Wagstaff, (eds), Italy in the Cold War: Politics, Culture and Society, 1945–1958 (Oxford, 1995), pp. 1–24, p. 3.

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Parliament was not the only body that delayed the coming into being of the Constitutional Court. The Corte di Cassazione (Court of Appeal), which retained most of its members from the fascist period, actively resisted any progressive change. The failure to purge the fascist judiciary was one example of a widespread political amnesia in relation to fascism.18 In a decision of 7 February 1947, the Corte di Cassazione drew a distinction between what it termed ‘perceptive’ constitutional norms and ‘programmatic’ constitutional norms.19 The former were of immediately binding effect and the latter were general goals to be achieved at a later stage. This distinction provided a legal justification for the obstructionism of the Christian Democrats over the next decade in relation to the introduction of many parts of the Constitution. This is an interesting example of the upholders of law being involved in its own transgression or at least delay. The Corte di Cassazione obstructed the implementation of constitutional guarantees by interpreting the Constitution in the most restrictive manner possible. This created a climate that allowed for the carrying over of a fascist legal mentality into the new regime. It was as if both the conservative unpurged judiciary and the Christian Democrats were deferring the moment of addressing or being addressed by the nation’s fascist past. This phenomenon was not ameliorated by the manner in which the post-war Constitution constructed the family. Within the Constitution the narrative of the family was still a traditionalist one. In Article 29, the family is defined as a natural unit founded on marriage: The family is recognized by the Republic as a natural association founded on marriage. Marriage entails moral and legal equality of the spouses within legally defined limits to protect the unity of the family.20

This reflects the influence of Roman Catholic social teaching in this matter. Marriage is founded on the moral and legal equality of the spouses within the limits imposed by law and subject to guaranteeing family unity. This formulation, while giving the appearance of equality, has a number of interesting exceptions, within the limits imposed by law in 1948, namely the prohibition of any choice on the part of women as exemplified by laws banning divorce, contraception, and abortion as well as a law which severely punished women found guilty of adultery.

18 Indicative of such amnesia was the leading philosopher of post-war Italian liberalism, Benedetto Croce, who observed, more in hope than conviction, that the fascist period was a mere parenthesis in the country’s otherwise progressive march towards liberalism. (See further Christopher Duggan, ‘Italy in the Cold War Years’, pp. 3–4.) 19 See further P. Vercellone, ‘The Italian Constitution of 1947–48’, in Stuart Woolf (ed.), The Rebirth of Italy 1943–50 (London, 1972), pp. 121–134. 20 In the original this is rendered as follows: La Repubblica riconosce i diritti della famiglia come società naturale fondata sul matrimonio. Il matrimonio è ordinato sulla egualglianza morale e giuridica dei coniugi, coi limiti stabiliti dalla legge a garanzia della unità familiare.

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In Article 31, the Constitution proclaims the importance of the family and of maternity in Italian society. It states that: The Republic furthers family formation and the fulfilment of related tasks by means of economic and other provisions with special regard to large families. The Republic protects maternity, infancy, and youth; it supports and encourages institutions needed for this purpose.21

The protection of maternity in the 1948 Constitution can be seen as the protection of a male-defined notion of motherhood. In this model maternity is taken to be the societally-determined condition of women. The constitutional document, despite its liberal pretensions, was diluted by the inclusion of Roman Catholic natural law thinking. This Roman Catholic model of family relations was reinforced by a political culture that continued to adhere to both Catholic and patriarchal values.22 The document itself was seen by one of those involved in its drafting, Piero Calamandrei, as the failed promise of revolution. He observed that: ‘To compensate the left-wing parties for their failure to effect a revolution, the right-wing forces did not oppose the inclusion in the Constitution of the promise of a revolution.’23 The Constitution promised a revolution that would never come.24 The conservative ideal of Italian societal identity circulating in political and juridical discourses in the immediate post-fascist period had much in common with the mentality of the fascist period. This was a refutation of any hopes of a liberal pluralist society. As Pocar and Ronfani have put it: The post-war judiciary found that the model of the family established by the Civil Code of 1942 matched their cultural values and their ideal [of the family], which … reflected the dominant values of their social background, (lower middle-class and Southern), and lifestyle, circumscribed as it was by work and family … moreover, the personal values

21 The original reads as follows: La Repubblica agevola con misure economiche e altre provvidenze la formazione della famiglia e la adempimento dei compiti relativi, con particolare riguardo alle famiglie numerose. Protegge la maternità, l’infanzia e la gioventù, favorendo gli istituti necessari a tale scopo. 22 See further Gino Bedani, ‘The Dossettiani and the Concept of the Secular State in the Constitutional Debates: 1946–7’, Modern Italy, 1 (1996): 3–22. 23 Piero Calamandrei, ‘La Costituzione e le leggi per attuarla’, cited in P.Vercellone, ‘The Italian Constitution of 1947–48’, p. 124. 24 Indeed this is true of all constitutions, even those that are drafted in the wake of revolutions. Constitutions are always replete with the false promise of yet another revolution to come. At the same time such documents provide the legitimating framework for the management and discipline of the populace.

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of the judges and their resistant stance towards change integrated well into the dominant values of the judicial and political cultures of those years.25

This anomaly between the norm and its interpretation created a situation in which the Constitution was subordinate to the existing fascist era laws. As Pier Paolo Pasolini has observed (in noting the clear similarities between the fascism of Mussolini and the succeeding thirty years of Christian Democratic rule), both regimes shared the same empty values of church, family, nation, obedience, discipline, order, savings, and morality.26 The post-war state built as it was on a false tolerance engaged in a similar biopolitical management of individual lives in the interest of a statist ideology. For Pasolini, the management of naked or mere life (that is, the material lives of citizens) was the common factor in both regimes. In both cases the state would appear to act in the interests of the community yet at the same time would engage in the mass biopolitical regimentation of individual lives. In his essay, ‘Non aver paura di avere un cuore’ (‘Don’t be afraid to have a heart’), Pasolini speaks of this characteristic of the state to both discipline and accord limited freedom simultaneously: ‘In a society where everything is forbidden, one can do everything: in a society where something is permitted, one can only do that something.’27 This remark encapsulates the problem of individual freedom in a society of biopolitical control. In other words, one is only accorded that amount of freedom or that thing which the state specifically wishes you to have. The idea of representative democracy in such a state is unthinkable given that the only interests that are represented are those of the power elites.28 This phenomenon of the void between the state and civil society helps to explain 25 Valerio Pocar and Paola Ronfani, La famiglia e il diritto (Rome, 2006), p. 41. I giudici del dopguerra trovavano il modello familiare delineato dal codice civile del 1942 come coerente col loro patrimonio culturale e ideale, che … rifletteva la prevalente provenienza piccolo-borghese e meridionale e uno stile di vita per la maggioranza ciroscritto a lavoro e famiglia … peraltro, gli orientamenti dei giudici e la loro posizione di resistenza al mutamento ben s’inserivano negli orientamenti della cultura giuridica e politica dominante in quegli anni. 26 Pier Paolo Pasolini, ‘Il vuoto del potere in Italia’, in Pier Paolo Pasolini, Scritti corsari (Milan, 2002), pp. 128–134, p. 129. 27 ‘In una società dove tutto è proibito, si può fare tutto: in una società dove si è permesso qualcosa si può fare solo quel qualcosa.’ (Pier Paolo Pasolini, ‘Non aver paura di avere un cuore’, in Pier Paolo Pasolini, Scritti corsari (Milan, 2002), pp. 122–127, p. 124). 28 This became even more explicit during the term of the Berlusconi regime from 2001 to 2006. As Paul Ginsborg. (The Politics of Everyday Life: Making Choices, Changing Lives (New Haven, 2005), pp. 1–2). has noted in referring to Berlusconi’s term in office: [Berlusconi] represented a dangerous model for the rest of the democratic world. Here was one of the richest men in Europe taking hold of the Italian republic; a media magnet who owned most of Italy’s commercial television and its largest publishing house, a man who at the time of his election was on trial on a number of charges, which varied from bribery of tax inspectors to corruption of magistrates. Once in office, he added to the control of his own television channels that of public radio and television, notoriously the vehicle of Italy’s ruling political elites.

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the growth of anti-state movements in Italy from the late 1960s onwards and the concomitant repressive reaction of the state, particularly in the period from 1969 to the early 1980s, known as the anni di piombo.29 The outbreak of discontent on behalf of the citizenry underlined the failure of the constitutional settlement of the late 1940s, which, in effect, settled nothing and led only to resentment and repression. This of course provokes resistance of a greater or lesser degree from those over whom power is exercised. Re-narrating the Family Once the Constitutional Court came into being, it did not engage in a judicial revolution but reacted very slowly to changing cultural and social values. In 1961, for example, the Constitutional Court was presented with a case that challenged the constitutional compatibility of the fascist era law on adultery. Under this law a wife’s adultery was immediately considered a crime and punishable by a jail sentence, whereas a man’s adultery was tolerated and was punishable only if he kept a lover in the marital home. In this case, the Court decided that the adultery law was not in violation of Article 3 of the Constitution, which upholds the principle of equality. The Court, in a typically misogynist judgment, noted that a woman’s adultery causes more damage to the institution of the family than that of a man. In so deciding the Court observed: the husband’s adultery can … be seen as tantamount to a disruption of family unity; however, as regards marital fidelity and family unity, the legislator had evidently intended to underline the different and more serious damage caused by the wife’s illicit conduct, which affects the most delicate structure and the most vital interests of the family.30

The Court went on to outline a list of perceived dangers that could, in its opinion, result from the mother’s adultery, namely, the potential for psychic damage to the children of thinking of their mother in the arms of a stranger, the damage to the institution of the family, and the risk of the woman giving birth to illegitimate children. This ruling reflected the persistence of an idea of the family that sought at all costs to protect family unity at the expense of the happiness and freedom of 29 Literally the ‘years of lead’, denoting the bullets fired on all sides during this period where disaffection with the Christian Democrat regime led to terrorist action by radical groups of the extreme left and the extreme right, with counter-terrorist acts committed by the state. One can of course see here the unfinished business of the civil war between fascist and antifascist forces re-emerging in another form after the years of repression and compromise of the First Republic. For an overview of this period see the essays in Anna Cento Bull and Adalgisa Giorgio (eds), Speaking Out and Silencing: Culture, Society and Politics in Italy in the 1970s (Oxford, 2006). 30 ‘… l’adulterio del marito può … manifestarsi coefficiente di disgregazione della unità familiare; ma, come per la fedeltà coniugale così per la unità familiare, il legislatore ha evidentemente ritenuto di avvertire una diversa e maggiore entità della illecità condotta della moglie, rappresentandosi la più delicate strutture e sui più delicati interessi della famiglia.’ (Corte Costituzionale, Sentenza n. 64, 28 Novembre 1961).

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its individual members. Moreover, it demonstrated the failure of the so-called antifascist republic to address in any way the legacy of fascism, allowing fascist laws to remain on the statute books and impede individual freedom. Only in 1968 did the Constitutional Court begin to intervene more robustly in addressing questions of family unity and individual freedom. In a decision of that year, the Constitutional Court overturned its 1961 decision on the adultery law.31 In this decision, the Court noted the discriminatory nature of the criminal provision and its incompatibility with the equality principle contained in Article 3 of the Constitution. The Court also noted the significant transformation of the status of women in society by that time. It ruled that, contrary to the 1961 decision, the impugned provision gave the husband a position of privilege that could not be justified in the name of maintaining family unity. The Constitutional Court’s decision of 1968 marked a clear break with the immediate post-war culture of refusing to question the legal status of the traditional heteropatriarchal family unit founded on marriage. Here one can observe the beginning of a move towards rethinking the legal model of family relations. The legislature began to move slowly, in the wake of the Constitutional Court decision of 1968, to redefine the legal notion of the family. The introduction of legalised divorce in 1970 together with the introduction of a new Family Law in 1975 appeared, on the surface, to reflect the emergence of a new, more liberal, thinking on the notion of the family within Italian society. Further examples of progressive change in the area of family relations after 1968 include the decriminalisation of the provision of information on birth control in 1971; the defeat of a referendum initiated by traditionalist groups which sought to repeal the divorce law in 1974; legislation legalising abortion in 1978; and the defeat of another traditionalist inspired referendum to repeal the abortion legislation in 1981. Taken together these legal changes reflected the wider societal changes in relation to how the family was conceived. The notion of the family moved from the old model based on the primordial status of the father within the family to a relational model that took account of the interests of all family members.32 The old model of the father as privileged family member began finally to be renarrated in a legal sense.33 Conclusion: Familial Counternarratives Since the progressive movement of legislation in the 1970s and 1980s, a countertendency has emerged in the past decade. This has taken the form of an alliance between the Roman Catholic Church and conservative Catholic politicians across the party spectrum. This theo-conservative lobby demands laws that promise a return to the hierarchal heteropatriarchal family model and that restrict sexual 31 Corte Costituzionale, Sentenza, n. 126, 19 Dicembre 1968. 32 For a full discussion of this law see Pocar and Ronfani, La famiglia e il diritto, pp. 57–77, and Lesley Caldwell, Italian Family Matters: Women, Politics and Legal Reform (London, 1991), pp. 69–86. 33 Legge 151 of 1975. See further Pocar and Ronfani La famiglia e il diritto, pp. 49–111. See also Thomas Glyn Watkin, The Italian Legal Tradition (Aldershot, 1997), chapter 11.

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freedom, abortion, gay rights and multiculturalism.34 The persistence of patriarchy is evident despite the cultural and legal changes in relation to women’s position in society since the 1960s. Despite a diversity of family models, the cultural attachment to the notion of the heteropatriarchal family unit remains strong in many quarters. This has been given greater emphasis since the break up of the Italian party system in the 1990s. This came about after the unveiling of the scandals known as Tangentopoli (‘Kickback city’) in 1991, which revealed widespread corruption in politics on both the right and the left. This led to the splintering of the traditional division of the political scene between the Communist Party (Partito Communista Italiano) and the Christian Democrats (Democristiani) into a series of new political alliances of the centre left and right. Without a strong political ideology, increasingly the ideology of Catholicism became an anchoring point particularly, but not exclusively, for the centre right, a means of piggybacking on widely accepted values in order to win more support.35 This so-called ‘post-political’ phase in Italy has seen a rush to re-establish a stable political identity on the part of several groupings.36 These range from the ultra-conservative secessionists of Umberto Bossi’s Northern League (Lega Nord), through the anti-politics of Silvio Berlusconi, to the re-invented and re-branded neofascist party (Alleanza Nazionale). All proposed a way to fill the political vacuum, but not in a manner that would create an inclusive citizenship. The result is a politics based on exclusion and prejudice.37 This is an attempt to construct a so-called homogeneous Italian identity based on strict ultra-conservative Roman Catholic values. This conservative ideal of Italian societal identity echoes in many ways the restrictive views of the fascist regime. The theo-conservatives (teocons), who found a home in the bizarre coalition of parties that formed the Silvio Berlusconi led administration from 2001 to 2006, demanded laws that restricted sexual freedom, abortion, gay rights and multiculturalism.38 On the other hand, there exist many civil society groupings whose goal is to promote a pluralist state.39 There exists a well-organised network of civil society groups with clear goals and with a wide base of support. However the political parties of the so-called left have refused to work in a more focused way with these

34 See further Donovan, ‘The Italian State: No Longer Catholic’, and also Stefano Rodotà, ‘La costituzione e i fondamentalisti’, La Repubblica, 28 May (2005): 1 and 19. 35 See further Donovan, ‘The Italian State: No Longer Catholic’. 36 For an introduction to recent Italian politics see Geoff Andrews, Not A Normal Country: Italy After Berlusconi (London, 2005). 37 However, this reactionary turn on the level of party politics has coincided with a reinvigorated civil society and the growth in social movement activity. This bears out Geoff Andrews’ observation that: ‘Italy is not a normal country, and … the boundaries between orthodoxies and heresies are constantly shifting’ (Andrews, Not A Normal Country, p. x). 38 The Berlusconi government was defeated in the general elections of April 2006 by the centre-left alliance led by Romano Prodi. See further on the Berlusconi era, Paul Ginsborg, Silvio Berlusconi: Television, Power and Patrimony (London, 2004). 39 See further Paul Ginsborg, The Politics of Everyday Life, pp. 1–11.

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groups.40 This betrays a problem with the institutional political left, which, while espousing a vaguely pluralist agenda, often takes a conservative stance on certain social issues. This was demonstrated recently in the support of the majority of the left coalition in parliament for a law that gave symbolic recognition to the embryo. This legislation demonstrates the successful operation of the theo-conservative backlash against the disappearance of the traditional family model. Indeed not even the Christian Democratic Party at the height of its power could have envisaged the success of the campaign to introduce a law on assisted reproductive technology, which had at its heart the idea of the protection of the embryo from the moment of conception. This law has as its driving force a desire to return Italy to the default position of the patriarchal family model. The legislation is infused with a narrative of the family that falls squarely within the traditional patriarchal model. The law gives overt protection to the embryo, limits access to assisted reproductive technologies to married couples or heterosexual couples in a stable relationship, and outlaws donor insemination. It is as if, symbolically at least, the legislature wanted to revert to the old hierarchal patriarchal family model. In this recent episode, the Church has re-emerged as a political force or at the very least the mouthpiece of a resurgent conservatism, aided and abetted by a political class who would prefer to follow the Church’s line on bioethics rather than formulate models of bioethical governance that regulated the area in a non-partisan manner. The Church’s battle to recover its lost power began over twenty years previously when it failed to prevent the introduction of abortion legislation.41 It is to this topic that we will turn in the next chapter in order to understand the extent to which reproductive politics has been at the forefront of the struggle between competing ideas about the construction of Italian societal and political values in recent decades.

40 This anecdote, told by Paul Ginsborg, the academic and campaigner for a more pluralist, participative form of democracy in Italy, sums up perfectly this disconnect between institutional politicians and civil society movements (The Politics of Everyday Life, p. 142, n. 26): I was once invited by a senior Italian politician to lunch. At table, he spent the first fifteen minutes glued to his mobile phone, while I watched him. I then phoned my wife and said to her in a loud enough voice for him to hear: ‘I have been invited to lunch by X but I cannot understand why. He seems to prefer talking to someone else, and I much prefer talking to you.’ He turned off his phone for the rest of the lunch, but it was a bit too late for my taste. 41 For a detailed analysis of the resurgence of the Roman Catholic Church as a political force in Italy, see Magister, Chiesa extraparlamentare and Damilano, Il partito di Dio.

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Chapter 3

Rethinking Reproductive Freedom: The Case of Abortion do we really want to go from personal authority to public authorities? Do we really want to switch from the marginality of our official quasi-non-existence to being citizens equal to men? Or do we want to use this marginality as a starting point for changing our condition and all of society with it?1 What is, or should be, women’s level of consciousness cannot be decided by legal decree.2 women cannot be legislators in a society which does not acknowledge their existence.3

Introduction The relation between the law and women’s freedom became a hotly contested question in Italy in the 1970s. While mainstream liberal feminism campaigned for legal reform in relation to divorce, abortion, contraception and rape, radical feminism questioned the ability of law to accommodate sexual difference. For many radical feminists the resort to law was a form of false consciousness that further enslaved women in a regime of patriarchal control. The struggle for the legalisation of abortion led to intense and sophisticated exchanges on whether liberal rights discourse could in fact change women’s material and symbolic position in a society that remained fixed within a masculine power structure. The formal legal decriminalisation of abortion was not the end of debate on the matter. Instead, it provoked more profound questions about the position of women in society, and the extent to which legal reform as such was sufficient to transform patriarchal cultural assumptions. In the campaign for legalised abortion throughout the 1970s women’s groups had called for the authorisation of abortions to be granted by women’s health clinics, and not by the medical profession. However, the 1978 abortion law, in common

1 A participant at the Umanitaria Conference, Milan, 27–28 October 1979, organised by the Milan Women’s Bookstore Collective, cited in Paola Bono and Sandra Kemp, Italian Feminist Thought (Oxford, 1991), p. 73. 2 Bono and Kemp, Italian Feminist Thought, p. 74, citing an undated text for a press conference on the proposed legislative initiative on sexual violence, organised by the Milan Women’s Bookstore Collective in October 1979. 3 Bono and Kemp, Italian Feminist Thought, p. 75.

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with abortion legislation in many liberal states, leaves the decision as to whether an abortion can be carried out in the hands of the medical profession. In addition, and unexceptionally, medical professionals may opt out of providing pregnancy termination services on the grounds of conscience. The abortion legislation does not have, at its base, a desire to give women true reproductive freedom. Rather, its negative aim is to regulate and control illegal abortions, thus placing it firmly within a legislative regime of control.4 As Laura Conti has observed: Contrary to what it may seem, it is not a law which allows abortion. It is a law which prohibits it, except in certain circumstances: namely, that it be carried out in a public facility, that at least seven days must elapse from the moment when the woman notified a doctor of her decision to abort.5

Feminism, Abortion and Legal Change In the late 1960s and 1970s, Italian society and its political elites were subject to an intense questioning.6 The younger generation was disenchanted with the patriarchal institutional politics, which was supine in its relation with the Vatican. Within this climate of questioning, the Italian feminist movement emerged as a powerful force for political change. The question of abortion opened up the underlying tension in society between an old patriarchal order and an order based on equal citizenship. In 1971 the Movement for Women’s Liberation (Movimento di liberazione della donna), in conjunction with the Radical Party campaigned for a citizen initiative law that would repeal the extant law that criminalised abortion. Abortion remained a criminal act under the fascist-era Penal Code of 1930. Title X of the 1930 Penal Code contained the so-called ‘Crimes against the Integrity and Health of the Stock’. Acts that were so defined included abortion, voluntary sterilisation, the transmission of venereal disease and using artificial contraception. The classification of such acts as crimes was justified by the framer of the Penal Code, Alfredo Rocco, in the following terms: it seemed to me that the principal raison d’etre of the indictment of … [such] … practices was to be found in their offence against the interest that the nation has, as an ethnic unit, to defend the continuity and integrity of the stock. No one can really doubt that every act meant to suppress or sterilize the founts of procreation is an attack against the very life of the race, in the series of present and future generations that compose it, and therefore an 4 The law as such is similar to abortion legislation in most European states, which does not provide for total decriminalisation of abortion. 5 ‘Contrariamente a quanto si ritiene non è una legge che consente l’aborto. È una legge che lo vieta, salvo che in certe circostanze: la circostanza che sia praticato in una struttura sanitria pubblica, la circostanza che siano trascorsi almeno sette giorni da quando la donna abbia notificato a un medico la propria decisione di abortire.’ (Cited in Maria-Luisa Boccia, La differenza politica (Milan, 2002), p. 185.) 6 For a detailed analysis of this period see Anna Cento Bull and Adalgisa Giorgio (eds), Speaking Out and Silencing (Oxford 2006), and Luciana Percovich, La coscienza nel corpo: Donne, salute e medicina negli anni settanta (Milan, 2005).

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offence against the very existence of society ethnically considered – that is, against the existence of the nation.7

The Penal Code of 1930 envisaged sentences ranging from two to five years for both the woman undergoing the abortion and the person carrying it out.8 The law did not of course prevent abortions from taking place, with estimates of clandestine abortions in the 1970s ranging from 850,000 to 1,000,000 per year.9 There was a huge disparity between women from differing social strata in relation to ease of access to illegal abortions. For the wealthier urban classes, abortion was available at a price in conditions of relative safety and privacy. In addition, wealthier women were also able to travel to jurisdictions where abortion was legally available. On the other hand, as Signorelli has observed, poorer women were forced to resort to ‘parsley decoctions and knitting needles. These methods often caused women to be taken urgently to hospital, where a doctor willing to accept the statement of “miscarriage” and stop the haemorrhage might be found’.10 By the 1970s women continued to be prosecuted for procuring abortions. Indeed one of the first major demonstrations of the mass women’s movement against the criminalisation of abortion took place in Padua in 1973 in protest against the prosecution and trial of Gigliola Pierobon.11 The Movement for Women’s Liberation pointed out the hypocrisy of a state that retained on its statute books a law that criminalised abortion yet that in practice had such high rates of illegal abortions. However, not all groups within the feminist movement supported the legislative strategy proposed by the Movement for Women’s Liberation. While they agreed that abortion should be decriminalised, they did not want further legislation regulating abortion provision. They called for a female-centred model that would include the setting up of clinics run by women for women outside the domain of male medical power. One such group, which was very influential within Italian feminism, was Rivolta Femminile (Female Revolt). One of its founding forces was Carla Lonzi who in her writings advocated a politics of separatism and self-knowledge (autocoscienza). In her influential work of the early 1970s, Sputiamo su Hegel (Let’s Spit on Hegel), Lonzi observes that: Woman’s difference is her millennial absence from history. Let us profit from this difference; for once we have achieved inclusion in society, who is to say how many more centuries will have to pass before we can throw off this new yoke? The task of subverting the order of the patriarchal structure cannot be left to others. Equality is what is offered as

7 Cited in David Horn, Social Bodies (Princeton, 1995), p. 83. 8 See ibid., pp. 84–88. 9 See further Massimo Livi-Bacci, ‘Demografia dell’aborto in Italia’, Sapere (1975): 41–46. 10 Amalia Signorelli, ‘Women in Italy in the 1970s’, in Cento Bull and Giorgio (eds), Speaking Out and Silencing, pp. 42–68, p. 49. However many women did not survive such interventions. 11 See further Aida Ribero, Una Questione Di Liberta: Il femminismo degli anni Settanta (Torino, 1999), p. 272.

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This radical critique of women’s role and experience required that merely legislating for abortion would not be enough to transform the cultural and symbolic position of women in society. What was necessary was a transformation of woman’s symbolic position not just concessions granted to women by male legislators. The arguments developed in relation to struggles for female reproductive choice throughout the 1970s led to a particular model of feminist activism and theorising which was to become known as Italian sexual difference theory. This way of seeing feminist politics required that women’s liberation from servitude could not be brought about by legislation alone.13 The diverse voices of feminism on this issue exchanged their views throughout the 1970s, particularly in the form of tracts and manifestos. Within this exchange the question of whether law could bring about true freedom from patriarchy was continually raised. Representative of such a questioning was the tract from the Florence-based Feminist Collective of Santacroce (Collettivo Femminista Santacroce) entitled ‘Non vogliamo più abortire’ (‘We don’t want to abort any more’). This tract reflects the concern about the view that legalised abortion will somehow solve the problem of female sexuality within a patriarchal society: Some political groups, who currently in Italy and elsewhere lobby for a policy of legal regulation of abortion, seek to present those aspects as the only ones which make up women’s unease with abortion. This, we believe, is deeply confusing. The insistence at the institutional level on those aspects of guilt and moral and criminal responsibility inherent in illegal abortion has a clearly ideological overtone.14 12 Cited in Bono and Kemp, Italian Feminist Thought, p. 41. 13 The growth of a more radical feminism occurred with the setting up of DEMAU (Demistificazione dell’autoritarismo), in Milan in 1965. DEMAU began as a study group on women’s experiences in patriarchal society. Its views did not coincide with feminist groups that saw law as a means of liberating women. It saw in legal change not a means of bringing freedom for women but of integrating them into a society in which their position continued to be defined and delimited by male authority. Instead DEMAU called for a politics that started from the experiences of women, a politics that would allow women to define themselves rather than to be defined according to patriarchal norms. See further, Bono and Kemp, Italian Feminist Thought, pp. 33–35. For an overview of sexual difference politics in Italy in the 1970s and 1980s see Belinda Beccalli, ‘The Modern Women’s Movement in Italy’, New Left Review, 1 (1994): 86–112, and Carol Lazzaro-Weis, ‘The Concept of Difference in Italian Feminist Thought: Mothers, Daughters, Heretics’, in Graziella Parati and Rebecca West (eds), Italian Feminist Theory and Practice: Equality and Sexual Difference (Madison, 2002), pp. 31–49. 14 Collettivo Femminista Santacroce, ‘Non vogliamo più abortire’ (Firenze, 19 January 1975), reprinted in Percovich, La coscienza nel corpo, p. 100. The original is rendered as follows: alcuni settori politici che attualmente in Italia e altrove si schierano per una politica di regolamentazione legale dell’aborto, cercano di presentare questi aspetti come i soli che costituiscono il disagio delle donne nei confronti dell’aborto; questo a nostro

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In a similar vein, the Milan-based collective, Via Cherubini, published the pamphlet ‘Noi sull’aborto facciamo un lavoro politico diverso’ (‘We have a different political project in relation to abortion’) in 1976. The group did not support the institutional legal solution to the issue of female subordination: We say immediately that, for us, mass abortion in hospitals does not represent a victory for civilisation, because it is a violent and deadly response to the problem of pregnancy and, moreover, inscribes guilt on women’s bodies. It is her body which errs because it produces babies which the capitalist system cannot maintain and educate … And the problem to resolve becomes that of controlling births and not the transformation of the sexist structure of society. We cannot collaborate in this false consciousness.15

Despite this alternative critical voice within feminism in relation to abortion legislation, there were many within the women’s movement who called for decriminalisation of abortion and a form of regulation within the system that would uphold female self-determination. Groups such as the Unione delle donne italiane, (The Union of Italian Women), and the female wing of the Italian Communist Party called for a strategy of doppia militanza (double militancy). In other words, these groups called for a two-fold strategy that saw legislative reform as the first step towards an eventual symbolic and cultural transformation of patriarchy. During this period, less radical strategies such as constitutional challenges in the courts to the existing abortion law and attempts to influence the passage of legislation that would introduce a system of regulated abortion were also engaged in by women’s groups. These strategies did bear fruit but not to the extent that was hoped for. The first official recognition of a right to choose in relation to abortion came from a decision of the Constitutional Court in 1975.16 The Court declared Article 536 of the Penal Code of 1930 unconstitutional. The Court observed that in cases where the life or health of the mother were in danger then abortion should not be considered unlawful. The case itself, while stating that the woman’s health should be given due regard, also refers to the foetus as worthy of protection even though it

parere è profondamente mistificatorio. L’insistenza di questo schieramento a livello istituzionale sugli aspetti della colpa e della responsabilita morale e penale contenuti nell’aborto illegale ha una connotazione prettamente ideologica. 15 Un Gruppo di Donne del Collettivo Femminista Milanese (via Cherubini, 8), ‘Noi sull’aborto facciamo un lavoro politico diverso’ (1976), reprinted in Percovich, La coscienza nel corpo, p. 104: diciamo subito che per noi l’aborto di massa negli ospedali non rappresenta una conquista di civiltà, perche è una risposta violenta e mortifera al problema della gravidanza e che per di più colpevolizza ulteriormente il corpo della donna: è il suo corpo che sbaglia perchè fa bambini che il capitalismo non può mantenere ed educare … E il problema da risolvere diventa quello del controllo delle nascite e non il cambiamento della struttura sessista e capitalista della società. Non possiamo essere complici di questa falsa coscienza. 16 Corte costituzionale, sentenza n. 27 of 1975 available at www.cortecostituzionale. it/ita/ attivitacorte/pronunceemassime/pronunce.

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would not take precedence over the life or health of the mother. The Constitutional Court observed that: The constitutionally protected interests of the foetus can come into conflict with other constitutionally protected values, and as a consequence, the law cannot accord the former absolute and total protection, negating the protection of the latter.17

Nonetheless, the foetus was never far from the concerns of judges, evidence of the criticism of feminist groups that the law could only construct the issue through the gaze of patriarchy. There remained a balancing of the woman’s interests with those of the foetus rather than a clear assertion of female reproductive autonomy. Indeed the Constitutional Court’s overriding concern in this case was the issue of clandestine abortions in Italy, rather than a concept of female reproductive autonomy. This attempt to stamp out something clandestine and to bring it within the regulatory scope of law was to be the form in which abortion was to be conceded to women by the patriarchal judicial and later legislative powers. The Constitutional Court’s decision reinvigorated calls and campaigns for decriminalisation of abortion. In 1977, a Bill on abortion finally won approval in the lower house of Parliament, the Chamber of Deputies (La Camera dei deputati), but was defeated in the Senate. A further Bill was formulated which finally passed both houses in 1978. The Christian Democrats abstained from the final vote. However, a combination of centrist and leftist parties voted in favour of the legislation thus allowing it to be passed into law. The Christian Democrats, even though they were the party of government, were heavily dependent on parliamentary support from the Communist Party. The Communist Party promoted a more liberal model of abortion. However even the Communist Party did not want to push a policy, desired by many women’s groups, of decriminalising abortion and not introducing a regulatory framework for its provision. Even the most liberal model envisaged by institutional politics did not coincide with women’s demands in relation to complete self-determination on the issue of abortion. As Luisa Passerini has observed, the legislation was introduced in a spirit of paternal concession.18 The spur to partial decriminalisation of abortion was not based on seeing women as autonomous individuals with free choice but rather on the need to regulate the transgressive practice of the backstreet abortion. In this sense, we move from a system of control over women’s bodies which criminalises abortion to a system of control that allows women to abort in certain limited circumstances. The system of control remains and women are not the ultimate decision-makers in this regard. Even within this system of partial decriminalisation, the mother is separated from the foetus and the interests of both are seen as in conflict rather than in harmony.

17 ‘… l’interesse costituzionalmente protetto relative al concepito può venire in collisione con altri beni che godano pur essi di tutela costituzionale e che di consequenza, la legge non può dare al primo una prevalenza totale ed assoluta, negando ai secondi totale protezione.’ (Ibid., pp. 2–3). 18 Luisa Passerini, ‘The interpretation of democracy in the Italian women’s movement of the 1970s and 1980s’, Women’s Studies International Forum, 17 (1994): 235–240, p. 238.

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At the other end of the political spectrum, traditionalist Roman Catholic thought was opposed to the new legislation. It began to mobilise to repeal this law, which it saw as an unacceptable attack on the traditional model of family and society. In 1980, the Italian right to life movement succeeded in collecting sufficient signatures for a referendum on repealing the abortion law.19 The referendum took place in 1981 with a large majority, 67.9 per cent, voting against this repeal initiative. There were in fact two referenda on abortion held simultaneously in 1981. The other referendum was tabled by the Radical Party and proposed a less restrictive abortion law. The Radical Party’s referendum proposal called for the extension of the 1978 Abortion Law to the private medical sector and the improvement of abortion provision for minors. This referendum was also defeated with 88 per cent of those who voted voting against it.20 In 1997 an attempt was made to have a referendum on the law which sought to liberalise the law, including extending the period in which an abortion could lawfully be obtained beyond the ninety day limit laid down in the 1978 Act. The Constitutional Court refused to approve this referendum. In doing so it referred to and upheld the principles of its earlier decision on abortion in 1975, observing that: The law in question has as its rationale and guiding values precisely those values of motherhood and the protection of human life from its outset, which this Court has upheld, and has developed principles which both protect the health and life of the mother and which impose “the necessary measures … to prevent abortion becoming available without serious appraisal of the reality and seriousness of the damage or danger which could result to the mother of continuing with the pregnancy” and which links the legalisation of abortion provision “to a prior evaluation of the conditions attached to its justification”.21

The Limits of Institutionalising Reproductive Choice The Abortion Law of 1978 exhibits all the problems inherent in attempting to transform women’s legal position without a transformation in the symbolic position of women. The law cannot be seen as endorsing full reproductive freedom in that a conscience clause was included, which in practice severely limited the provision

19 See Lesley Caldwell, Italian Family Matters, pp. 87–101. 20 See further Jacqueline Andall, ‘Abortion, Politics and Gender in Italy’, Parliamentary Affairs, 47 (1994): 238–251. 21 In the original this passage reads as follows: la legge in questione ha enunciato come proprio criterio ispiratore e direttivo esattamente quei beni della maternità e della tutela della vita umana dal suo inizio, a cui la Corte aveva fatto richiamato, ed ha dettato disposizioni dirette a salvaguardare sia la salute e la vita della gestante sia “le cautele necessarie... per impedire che l’aborto venga procurato senza serii accertamenti sulla realtà e la gravità del danno o pericolo che potrebbe derivare alla madre dal proseguire della gestazione” ed ancorando la liceità dell’aborto “ad una previa valutazione delle condizioni atte a giustificarla”. (Corte Costituzionale, Sentenza 35/1997, available at www.cortecostituzionale.it/ita/ attivitacorte/pronunceemassime/pronounce).

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of abortion.22 This conscience clause has acted as an effective gatekeeper against abortions for many women. In the latest annual report from the Ministry of Health on the operation of the abortion law,23 it is reported that the rate of conscientious objection for the entire country is 59 per cent of gynaecologists and 46.3 per cent of anaesthetists with 39.1 per cent of non-medical staff objecting. There is a great variation between individual regions in relation to the rate of conscientious objection to the procedure. For example, in Basilicata in Southern Italy the rate of objection by gynaecologists is 92.6 per cent; while in Valle d’Aosta in the North the rate is 20 per cent. This disparity has led to women being forced to travel from one region to another where there is a more liberal application of the law. The irony of such a situation belies the claims for the liberality of the operation of the law. The legislation gives special recognition to motherhood in Italian society and also upholds rhetorically the interests of the foetus.24 This compromise is signalled in the first article of the law where it is stated that: ‘The State guarantees the right to responsible procreation; it recognizes the social value of maternity and protects human life from its inception.’25 The need to rehearse the valorisation of motherhood and the sanctity of life from its inception in a document that claims to advance women’s freedom to act autonomously reveals the unresolved tension between patriarchal values and female autonomy. Maternity in this sense is maternity as defined by male legislators. It is the concept of motherhood approved by legal elites. As Adriana Cavarero has noted: ‘the protection of maternity, which might seem to be specific to the female subject, is usually oriented towards a concept of protecting the rights of the unborn and the new-born’.26 The law manages to exclude any mention of women’s reproductive freedom. It is indeed more a permission to exercise reproductive choice in limited circumstances. The legislation rejects abortion as a means of controlling the birth rate,27 and also narrows the right to abort to the first ninety days in cases where the pregnancy would 22 Article 9, Legge 22 Maggio 1978, n.194, ‘Norme per la tutela sociale della maternità e sull’interruzione volontaria della gravidanza’ (Gazzetta Ufficiale n. 140 del 22 May 1978). 23 Ministero della Salute, Relazione Del Ministro Della Salute Sulla Attuazione Della Legge Contenente Norme Per La Tutela Sociale Della Maternità E Per L’Interruzione Volontaria Di Gravidanza (Legge 194/78) (Rome, 2006). 24 In Article 1 of the law it is stated: Lo Stato garantisce il diritto alla procreazione cosciente e responsabile, riconosce il valore sociale della maternità e tutela la vita dal suo inizio. L’interruzione volontaria della gravidanza, di cui alla presente legge, non è mezzo per il controllo delle nascite. Lo Stato, le regioni e gli enti locali, nell’ambito delle proprie funzioni e competenze, promouvono e sviluppano i servizi socio-sanitari, nonchè altre iniziative necessarie per evitare che lo aborto sia usato ai fini della limitazione delle nascite. 25 See Legge 22 Maggio 1978, n.194, “Norme per la tutela sociale della maternita e sull’interruzione volontaria della gravidanza” (Gazzetta Ufficiale n. 140 del 22 May 1978). 26 Adriana Cavarero, ‘Equality and sexual difference: amnesia in political thought’, in Gisela Bock and Susan James (eds), Beyond Equality and Difference: Citizenship, Feminist Politics, and Female Subjectivity (London, 1992), pp. 32–47, p. 37. 27 In Article 1 it is stated that: ‘L’interruzione volontaria della gravidanza, di cui alla presente legge, non e mezzo per il controllo delle nascite’.

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pose a serious danger to the physical or mental health of the woman or where there is malformation of the foetus. After seven days from the date of request, the woman obtains a certificate, which allows her to terminate her pregnancy only in public sector hospitals.28 If the abortion is carried out outside the limits of the law then it is a crime for which the woman can be punished.29 The law thus retains the criminalisation of abortion and is far from a model which values female self-determination. This model is not unique to Italy, as most states that have introduced abortion legislation have done so within the framework of a partial decriminalisation. As the Movement for Women’s Liberation commented after the law’s introduction: ‘This law … is the result of a mixture of fake morality and political balancing acts: all it does is crush women, trampling on their dignity, their freedom to determine their own lives, not to mention their real needs.’30 In looking at the impact on the woman’s physical or mental health cognisance is to be taken of her social, economic or family circumstances and the circumstances in which the foetus was conceived.31 This has to be confirmed by a medical professional. In cases where there are social, economic or family problems the professional has the ‘duty’ of helping the woman to address these issues and to put her in a position to assert her rights as a worker and mother.32 This is an example of the dissuasionary character of the legislation in which the doctor is obliged to discuss whether the problems that are preventing a woman from giving birth can be removed. The Act is constructed in such a way that dissuasion is an implicit goal. After the ninety-day period, abortion is permitted in circumstances where there is a grave danger to the life of the mother or to her physical or mental health.33 In practice, the cultural resistance of the medical profession and certain regions that are governed by right-wing administrations means that many women have little or no access to abortions in their immediate area. In addition, many gynaecologists who, due to the high rate of objection, are forced to deal with huge numbers of 28 Article 8 of the 1978 Act. 29 In relation to abortions that are carried out in the first ninety days of a pregnancy, but that are not conducted within the terms of the legislation, the medical professional involved is liable to a sentence of up to three years. The woman involved is subject to a fine. In the case of abortions carried out after ninety days that do not abide by the terms of the law, the medical professional involved is liable to a term of imprisonment of up to six years, and the woman involved is subject to imprisonment for a term of up to a maximum of four years. 30 Movimento di liberazione della donna, 1979, cited in Bono and Kemp, Italian Feminist Thought, p. 226. 31 Article 4 provides as follows: Per l’interruzione volontaria della gravidanza entro i primi novanta giorni, la donna che accusi circostanze per le quali la prosecuzione gravidanza, il parto o la maternità comporterebbero un serio pericolo per la sua salute fisica o psichica, in relazione o al suo stato di o alle sue condizioni economiche, o sociali o familiari, o alle circostanze in cui e avvenuto il concepimento, o a previsioni di anomalie o malformazioni del concepito, si rivolge ad un consultorio pubblico istituto … o a una struttura sociosanitaria a cio’ abilitata dalla regione, o a un medico di sua fiducia. 32 See Article 5 of the 1978 Act. 33 See Article 6 of the 1978 Act.

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abortions often face burn out and simply cannot continue. This has led to a situation where the operation of the law depends on the dedication of a minority of gynaecologists. Moreover, given this situation, rates of illegal abortion continue, with estimated rates of at least 20,000 per year. Of these, 90 per cent are based in southern Italy. The disparity between the poorer regions of Southern Italy (which have traditionally been more culturally conservative) and the regions of the centre and northwest (on the whole, but with exceptions, more urban and less conservative) reveals another major problem in relation to raising women’s level of knowledge and consciousness of reproductive freedom. As Calloni has pointed out, the main reasons for this disparity are that in the South many women do not know about the existence or terms of abortion legislation or do not want to endure the long wait to have an abortion in hospital.34 Today’s Government statistics reveal another dimension in relation to abortion, which did not exist to such a large degree in the 1970s, that is, that the highest percentage of abortions are now to be found amongst women from immigrant communities. These groups have the least possibility of gaining access to safe legal abortions and many are forced to obtain illegal abortions. As a consequence, the situation is a mirror image of the situation in the 1970s before the law was passed, with the poorest and most marginalised women being forced to seek clandestine abortions. The irony is of course that there is a regime of legal abortion in Italy today. Moreover, political intervention from right-wing politicians has attempted to subvert the functioning of the abortion legislation. In the north central administrative region of Lazio, the election of a right-wing administration under the leadership of Francesco Storace in the 1990s (who ironically later became Minister of Health in Berlusconi’s government until its fall in 2006) led to the closure of many units that provided pregnancy termination facilities. In addition, Storace had a habit of making alarming public pronouncements, such as when he announced that anyone who wanted to abort would have to go to nearby regions such as Tuscany or Le Marche.35 With the development of alternative methods of terminating pregnancy, such as the RU-486 contragestive pill, has come further resistance from right-wing politicians who wish to limit its availability. When the aforementioned Francesco Storace was Minister for Health in Berlusconi’s government, he banned the use of RU-486 in several public hospitals.36 The rates of induced abortions have decreased significantly in Italy since the introduction of the law. By 2003 the official abortion rate had dropped to 9.1 per 1,000 women compared to 19.6 per 1,000 women in 1982. This decrease can be explained by greater access to family planning as well as the problem of access

34 Marina Calloni, ‘Debates and Controversies on Abortion in Italy’, in Dorothy McBride Stetson (ed.), Abortion Politics, Women’s Movements, and the Democratic State: A Comparative Study of State Feminism (Oxford, 2001), pp. 181–203, p. 203. 35 See further Chiara Valentini, La fecondazione proibita (Milan, 2004), pp. 125–126 . 36 See further Paolo Griseri, ‘Stop alla pillola abortiva, è scontro’, La Repubblica, 22 Settembre (2005): 10.

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due to conscientious objection.37 The law on paper guarantees abortion but cultural resistance from medical and paramedical workers means that in practice abortion is not necessarily easily obtained. This description provided by a Milanese gynaecologist sums up the reality on the ground as regards access to public abortions in Italy today: Women who want to terminate their pregnancy have to queue up like at a meat counter with numbered tickets. Maybe the first ten or twenty in line can succeed [in having an abortion], the others are sent back home. It doesn’t matter if they are three or ten weeks pregnant.38

Taken together these cultural and political obstacles have led to a situation where those who carry out abortions are devalued professionally and those who object to performing abortions on the grounds of conscience are more likely to obtain career advancement.39 As one gynaecologist, responsible for abortions in a large hospital in Rome, observed recently in an interview: Those who apply the law … are in fact punished in relation to others [who don’t]. They work longer and for free. For many of us that which should be paid work is, in reality, voluntary, it is not paid work. Almost all of us are frustrated … there is constant pressure, there are insults, if not aggressive behaviour, including from the women involved. Therefore, it happens that the doctor who wants a quiet life, in the end decides to become, in her turn, a conscientious objector.40

37 See further Vittoria Buratta and Giovanna Boccuzzo, ‘Evolution and epidemiology of induced abortion in Italy’, Journal of Modern Italian Studies, 6 (2001): 1–18. 38 ‘Per le donne che vogliono interrompere la gravidanza ci sono i numeri come del salumiere. Magari le prime dieci o venti possono farlo, le altre vengono rimandate a casa. Non importa se sono incinte di tre o di dieci settimane.’ (Cited in Ritanna Armeni, La Colpa Delle Donne: Dal Referendum sull’aborto alla Fecondazione Assistita: Storie, Battaglie e Riflessioni (Milan, 2006), p. 109). 39 As Ritanna Armeni has observed: l’uso dell’obiezione di coscienza nelle giovani generazioni è pressochè totale. E non perchè i giovani medici siano tutti religiosi e difensori della vita, anche se questi, ovviamente, ci sono. (Ritanna Armeni, La Colpa Delle Donne, p. 116). 40 Ibid., p. 113. The original reads: Chi applica la legge … è di fatto punito rispetto agli altri. Lavora di più e gratis. Per molti di noi quello che dovrebbe essere lavoro è in realtà volontariato, non è retribuito. Quasi tutti siamo frustrati … c’e una contiua pressione, ci sono affronti quando non aggressività anche da parte delle donne. Così avviene che il medico che vuole una vita tranquilla alla fine decide di diventare a sua volta obiettore. Attempts were made to modify this apsect of the law. In 1989, for example, a bill was proposed by the Liberal deputy Francesco de Lorenzo, which would have addressed the issue of conscientous objection by directing clinics to employ non-objecting medical and paramedical staff on specific short-term contracts. The draft legislation provided for the prohibition of discrimination against staff as far as promtion was concerned. However this legislative project was not successful.

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There also exists a lack of cultural memory on the part of younger medical professionals as to the value of the right of a woman to make an independent decision in relation to abortion. Younger medical professionals have become more apathetic about the issue of self-determination relegating it to a secondary position behind career development and individual self-interest. As Armeni has observed: Younger doctors did not participate in, and did not experience the elaboration of, and the performance of, a collective consciousness which made women place their destiny in their own hands, in the call to decide for themselves in relation to motherhood. They do not recognize the power of women over birth and the capacity for control which derives from this, nor do they accept the culture of women’s self-determination which so strongly infused the struggles for abortion of thirty years ago.41

This situation reinforces the argument of radical feminism in the 1970s to the effect that legal reform in relation to abortion is a form of false consciousness. As such the barriers created by individual medical professionals who refuse to provide abortions render void women’s reproductive rights. It is clear then with the legislation’s opt-out conscience clause, combined with a professional tendency within gynaecological medicine to place the interests of female patients below individual career advancement, that the regulatory structure established by the 1978 law has not created an environment in which women’s reproductive autonomy can flourish. Instead, individual careers are valorised over the actual desires of women. This demonstrates the validity of the argument against cosmetic legislation that does not take into account women’s real needs and desires. This gap between liberal legal principles and the reality of entrenched patriarchy demonstrates the inefficacy of legislative change without more to counter patriarchal power. Indeed, it shows that patriarchal and conservative cultural values can undermine the operation of seemingly liberal legislative schemes. In the words of one commentator: ‘The case of abortion reveals all the ambiguities and uncertainties typical of the current state of affairs in Italy.’ 42 What the law is concerned with is control over transgressive practices such as illegal backstreet abortions. To have a medical practice not performed within the scope of tight legal and political control is a threat to the medico-juridical order as well as a threat to women’s lives and health. In this regard, the mere introduction of legislation controlling access to abortion services does not imply a transformation in the material and symbolic position of women.43 41 Ibid., p. 118. I medici più giovani non hanno partecipato e non hanno vissuto quella elaborazione e presa di coscienza collettiva che ha portato le donne a prendere in mano il loro destino, a chiedere di decidere della maternità. Non c’è in loro alcun riconoscimento del potere della donna sulla nascita e della potenzialità regolatoria che da esso deriva, tanto meno accettazione di quella cultura dell’autodeterminazione femminile che ha così fortemente permeato le lotte sull’aborto di trent’anni fa. 42 Bimbi, ‘Gender, ‘gift relationship’ and welfare state cultures in Italy’, p. 162. 43 Feminist novelist and activist Dacia Maraini expresses the unease with achieving abortion reform without addressing the continued subordination of women symbolically in

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Contesting Abortion Regulation Even though the law is far from perfect and does not guarantee in any sense the rights of women to true reproductive freedom, women have been forced to defend what little it permits against further recent attacks from right to life groups. This was particularly true in the period of Silvio Berlusconi’s term in office as Prime Minister (2001–2006). His governing alliance was made up of many deeply conservative members. Indeed one of his cabinet ministers, Rocco Buttiglione, saw it as a clear policy goal to repeal the abortion law. This, combined with Minister of Health Francesco Storace, who had a similar aim, forced women’s groups and others to defend this imperfect legislation. As Clara Sereni has pointed out, the rhetoric of the Berlusconi government marked a return to a construction of women as transgressors who must be controlled. She sees in the attempts to review abortion laws as well as in the conservative law on assisted reproduction a backlash against women’s freedom and an aggressive public discourse being employed by conservative male politicians and the Church hierarchy against women. She notes: ‘There has been a lot of talk about women recently. Usually with the aim of protecting us from ourselves: returning as we are to being ugly, dirty, bad. Witches.’44 The abortion law for many became the last line of defence against the erosion of women’s legally defined autonomy. Indeed the campaign to defend the abortion law saw the first major demonstrations by women’s movements since the late 1970s. In January of 2006, over 200,000 women assembled in Milan to demonstrate against these attempts to undo the abortion legislation.45 The march was organised by a women’s group called ‘Usciamo del silenzio’ (‘Let’s break the silence’) which was set up with the aim of defending women’s right to procreative liberty. One could argue that such groups are falling into the trap of being forced to defend the indefensible, that is, a law that was from the outset a compromise and did not uphold women’s interests. If anything, it incorporated women’s desires into liberal (masculine) rights

her 1996 essay ‘Lettera sull’aborto’. In this essay she muses on why it is that, after having secured a law on abortion, women are still not free to decide independently. In this regard, for Maraini, the resort to abortion (as opposed to the legalisation of abortion provision) is not something that women actually want, but is something forced upon them by the masculine social order. She laments the loss of maternal power: ‘La maternità, nella cultura dei padri, è stata trasformata in un evento di estrema passività per le donne.’ (See Dacia Maraini, ‘Lettera sull’aborto’, in Dacia Maraini, Un clandestino a bordo (Milan, 1996), pp. 9–34, p. 18). As a result, for Maraini: ‘L’aborto è la divinizzazione del nulla dopo avere praticato l’imitazione fasulla di un potere perduto nel difficile cammino feminile in un mondo maschile che nega alle donne autonomia e rispetto.’ (Ibid., p. 24). See also in this regard Anna Bravo, ‘Noi donne e la violenza, trent’anni per pensarci’, GENESIS: Rivista della Societa Italiana delle Storiche, III (2004): 17–56. 44 ‘C’è un gran parlare sòpra le donne, ultimamente. In genere con la scusa di proteggerci da noi stesse: che torniamo a essere brutte, sporche, cattive. Streghe.’ (Cited by Silvia Ballestra, Contro le donne nei secoli dei secoli, Milan, 2006, p. 40.) The slogan ‘Le streghe sono tornate’ was a popular slogan adopted and adapted by the Italian women’s movement in the 1970s. 45 The movement that promoted this campaign was Usciamo dal’ silenzio (Let’s break the silence), established by journalist Assunta Sarlo. See further www.usciamodalsilenzio.org/.

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discourse. By being forced to defend that which they do not want and never wanted women are under attack not just in relation to reproductive rights but also as citizens. This irony is not lost on representatives of radical feminism in Italy today. Ida Dominijani, in writing about this campaign in defence of the abortion law, observes that on the question of abortion women broke the silence over thirty years ago and never re-entered that state.46 For her, this episode raises again all the issues which were current at the time of the debate about the decriminalisation of abortion in the 1970s, namely, the need to refuse to reduce abortion to a mere question of legal rights, how abortion legislation is a compromise with male power, and how today women should not be forced to use a grammar of rights in relation to abortion, which would force them into a merely defensive position. Abortion and the Paradox of Reproductive Rights This turn of events raises yet again the doubts put forward by representatives of radical feminism in the 1970s in relation to the legal regulation of abortion. In their analysis of the abortion law at the time of its introduction, the Milan Women’s Bookstore Collective noted that: what we got was an abortion law that, in essence, takes into account male sexual needs, birth control, and public order (by putting an end to black market abortions). There is no thought of female sexuality. Was there at least a concern for women’s health? Not really, otherwise women would not have been obliged to abort in public hospitals.47

This dilemma requires one to cultivate a more critical stance towards the manner in which the notion of rights is constructed in the context of human reproduction. One work that has attempted to tackle this dilemma in the Italian context is the abovementioned Milan Women’s Bookstore Collective’s now classic text on the relation of sexual difference and law, Non credere di avere dei diritti (Don’t think you have any rights).48 In its analysis of the practice of sexual difference politics in Italy in the 1970s and 1980s, the text examines, inter alia, the relation of women to the law and the paradox of obtaining so-called rights and freedoms within the space of law. The Collective in this reflection attempted to outline what is at stake in engaging in campaigns for legislative change with the aim of obtaining parity for women with men. This, they claim, confuses mere emancipation with freedom, as women remain trapped within a masculine political symbolic and within a political community that does not allow them to be free. What is required instead is a redefinition of the terms of the liberal social contract. Within the liberal political model women only obtain 46 See Ida Dominijanni, ‘A chi tocca bucare il silenzio’ Il Manifesto, 12 January (2006), available at www.globalproject.info/print-7077.html. 47 The Milan Women’s Bookstore Collective, Sexual Difference: A Theory of SocialSymbolic Practice (Bloomington, Indiana, 1990), p. 68. 48 Libreria delle Donne di Milano, Non credere di avere dei diritti: la generazione della libertà femminile nell’idea e nelle vicende di un gruppo di donne (Turin, 1987). The work was subsequently translated into English as The Milan Women’s Bookstore Collective, Sexual Difference: A Theory of Social-Symbolic Practice (Bloomington, Indiana, 1990).

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recognition as long as they are represented as victims. The Collective observes that the institutional political system: has no problem in admitting that women are victims of a wrong, although it then reserves the right to decide according to its own criteria how they will be compensated, so the game may go on forever.49

The identification between women and these symbolic victims was profoundly problematic. As the Collective notes, liberal second-wave feminism in campaigning for change through rights legislation needed ‘housewives, women with abortion problems, raped women – not flesh and blood women, desiring and judging, but figures of the oppressed female sex and, as such, avatars of everything female.’50 In other words, although there was representation of female injury, there was no symbolic representation of female freedom that would lay the groundwork for a new thinking about female self-determination. What the Collective is calling for is no more and no less than the transformation of the subordinated symbolic position of women. Rejecting the strategy of a politics of victimhood, they call instead for that ‘something more which a woman wants to be and can be’.51 In speaking of the difference between a liberal feminist politics of rights and the sexual difference politics practiced by more radical groups such as themselves, the Collective notes that second-wave liberal feminism tends to identify women as a homogeneous oppressed group that requires the protection of the state in the form of laws. For them the philosophy and praxis of sexual difference goes beyond this mere emancipation and: considered women a different gender which was denied existence in the actual social system … [it] gave rise to the political practice of sexualizing or inscribing gender into social relations, language, and law – in short, of modifying the given social reality so as to impose on it the presence and the voice of the sex which has been negated.52

In this regard the work of the Collective bears similarities with the work of Luce Irigaray. Irigaray’s work was much debated in Italian radical feminist circles in the 1970s and 1980s and continues to be so. Irigaray has long analysed the question of how one might go about transforming women’s symbolic position within a highly phallocratic order.53 According to Irigaray, when women’s movements attempt to gain only: a change in the distribution of power, leaving intact the power structure itself, then they are resubjecting themselves, deliberately or not, to a phallocratic order. This latter gesture 49 The Milan Women’s Bookstore Collective, Sexual Difference, p. 128. 50 Ibid., p. 103. 51 Ibid., p. 101. 52 Ibid., p. 73. 53 See in particular, Luce Irigaray, This Sex Which Is Not One (Ithaca, 1985). For Irigaray’s influence on Italian feminism see Bono and Kemp, Italian Feminist Thought, pp. 12–13, and Penelope Deutscher, A Politics of Impossible Difference: The Later Work of Luce Irigaray (Ithaca, 2002), pp. 18–19.

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Irigaray observes, in writing about the granting of rights to women within the current heteropatriarchal legal order, that: any rights gained were still experienced in terms of permission granted within the context of a patriarchal family: family understood in the narrow sense, political or religious family. So, for example, we were granted permission to have abortions without being punished or penalized, but not yet given the positive right to freedom of choice concerning pregnancy. Similarly, any rights gained had to bear a masculine stamp of approval to have any real value.55

Perhaps, as Irigaray argues, in giving women positive rights that could be enforced by law, one could truly harness law in the interest of freedom for women. To do anything else would be to continue to subordinate oneself to male power. As Irigaray argues: Patriarchal power has … rallied support for an ideal of equality by appealing to another bloodier revolution which had nothing to do with women’s right to be different. So women’s activities and accomplishments on behalf of women have become bland, formulated in a neutral manner, expressing themselves as a claim to have the same rights as men. Many women have, in this way, taken on an economic, cultural and political conditioning that belongs to a masculine identity and History. They have sacrificed their own identity as women or that of their sisters in order to conform, or make their sisters conform, to a socio-historical conditioning that is man’s. Women’s struggles have thus lost their popular democratic character: by adopting the opinions and power of those, male or female, who had the right to speak, they have abandoned the mainstream in favour of academia, colloquia, literary conventions or political groupings. Their own sex, their own gender have become, yet again, a burden for women, and the term ‘feminism’ is once more the target of mockery or repression. … younger women who are almost allergic to the term because they want to live as they wish, to love according to their own desires, to try and construct a history, particularly a sexual history, in feminine mode, judging the problems of women’s liberation a thing of the past.56

This raises the more complex question of whether we can escape from the iron cage of institutional law-giving. Irigaray’s approach is to allow women to have positive rights. This right to decide in a real sense exceeds mere permission. It also calls us to reflect on the current conjuncture of politics in the key of liberal rights. This thinking would force us to call into question the relation between state and civil society and the extant model of representative democracy, given that what freedoms women have are mere concessions on the part of patriarchal power. Linda Zerilli has noted the similarity of the concerns of the Milan Collective and those of Irigaray. Zerilli argues that Irigaray’s call for positive sex-based rights helps 54 Irigaray, This Sex Which Is Not One, p. 81. 55 Luce Irigaray, Democracy Begins Between Two (London, 2002), p. 31. 56 Irigaray, Democracy Begins Between Two, pp. 34–35.

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to supplement the call of the Collective for a ‘something more than’ mere equality with men within a male symbolic system. In interpreting the Milan Collective’s argument as a call for inscribing the thinking of sexual difference in law, Zerilli observes that both Irigaray and the Milan Collective are aware of the problem of fetishising rights and forgetting ‘their [rights] relation to practices of freedom’.57 She is concerned that when one falls into the trap of mistaking rights victories or legislative change for freedom, we lose the radical promise of rights as such. She argues that: When rights become institutionalized, we tend to forget their origin in a radical, ungrounded claim to freedom, to non-domination and to equal participation in public affairs. We tend to become invested in securing them as such, rather than in maintaining our investment in the sometimes less stable practices that created them in the first place.58

Adriana Cavarero, one of the multiple authors of the Milan Collective’s ‘non credere di avere die diritti’, in her other writings allows us to further develop the ways in which we can get beyond the trap which Zerilli warns us against, to get beyond mere legal permission and work towards true freedom. There is a sense in this writing of both a withdrawal from praxis in the traditional liberal sense but also of a re-working of the very terms of the theory/praxis relationship. For Cavarero, the praxis of sexual difference thinking in Italy sees thinking as a practice of symbolic transformation. She has described the praxis of Italian sexual difference theory as: ‘a plural and interactive space of exhibition that is the only space that deserves the name of politics’.59 In Cavarero’s view, the old binary between theory and practice is not operative. Rather, she sees sexual difference thinking as ‘a concrete politics tied to the material context where language is generated’.60 Cavarero’s reading of the patriarchal narratives of western liberal democracies provides us with a framework within which to explain the manner in which Italy has approached the question of the regulation of reproduction. She provides a compelling account of the exclusion of the mere or embodied life of women from the male symbolic order in her re-reading of Plato’s account of the myth of Demeter.61 She observes that we in modernity are the inheritors of ‘an imagination produced by [an] ignorance about genetics that characterized classical Greece, a golden age for the patriarchal order’.62 Once the patriarchal symbolic order was stabilised, she argues, a deliberate ignorance about genetics was set up, which is crucial to an understanding of the contemporary societal imagination of women. This is the idea that the father alone has the power 57 Linda Zerilli, Feminism and the Abyss of Freedom (Chicago: University of Chicago Press, 2005), p. 120. 58 Ibid., p. 120. See also in this regard, Costas Douzinas, The End of Human Rights: Critical Legal Thought At The Turn Of The Century (Oxford, 2000). 59 Adriana Cavarero, Relating Narratives: Storytelling and Selfhood (London, 2000), p. 57. 60 Ibid., p. 99. 61 Adriana Cavarero, In Spite of Plato: A Feminist Rewriting of Ancient Philosophy (Cambridge, 1995), pp. 57–90. 62 Ibid., p. 71.

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to generate. For Cavarero, Plato displaces in his writings the power of women to generate life. Woman is re-imagined and represented as a transitional site on the way to the production of a life that is ultimately generated by the father. She cites Apollo in the Eumenides who sees the mother as a mere nurse to the foetus with which she is inseminated.63 In this schema the mother is only a host and the foetus is a guest. This deliberate genetic ignorance plays a key role in supporting the patriarchal symbolic order. The fact that woman’s role in reproduction and birth is bypassed in this schema allows the male to claim himself as fount of all life. Moreover, the erasure of woman’s birthgiving power allows the male to agonise interminably over his mortal existence. As mortal beings the regenerative power is the only means of guaranteeing the illusion of immortality. This schema becomes the foundation of the modern liberal order with the creation of the social contract as a means of survival, as a temporary immunity from death. This is the male symbolic order founded on death not birth. Cavarero, in her analysis of the myth of Demeter, notes that birth must be won back from the legal technical gaze of the male. It is a question of retrieving the relation between mother and daughter, through a retrieval of the mother’s gaze: birth calls for a dual system of the gaze: one between the mother and the daughter, the other between the mother and the son. It is because in the myth of origin the son decides to dis-tract himself and turn his attention to death, exiling the daughter there, that the gaze between the mother and the daughter is forcibly interrupted. Therefore, after this act, in the patriarchal symbolic order, neither the son nor the daughter look at the mother, the physis. But while the son can decide to do so, the daughter has been violently prevented from looking. Bioethics cannot then develop as a meaningful science if it does not acknowledge the “ethical fault” … of the son against bios that has rendered the meaning of physis invisible.64

The masculine philosophical appropriation of birth in order to make the male the source of life as pure thought is, for Cavarero, tantamount to an original matricide. In other words this original matricide is the theft of birth from the female, and the consequent male philosophical obsession with pure abstract thought. In Cavarero’s view: ‘the philosopher abandons the world of his own birth in order to establish his abode in pure thought, thus carrying out a symbolic matricide in the erasure of his birth.’65 This original matricide has ramifications far beyond the realms of philosophical discourse. It extends and underpins the normative order of society. For Cavarero: ‘The juridification of the lifeworld is only the most evident, tangible aspect of society’s invasion of the symbolic order of birth.’66 Legal regulation of human reproduction continues this original matricide, allowing for the biopolitical management of the mere life of material bodies in the name of the true life of the soul.67 For Cavarero birth as an idea has been: 63 64 65 66 67

Ibid., p. 72. Ibid., p. 88. Ibid., p. 38. Ibid., p. 86. Ibid., p. 25.

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lost as a consequence of the consolidation of this new ignorance about genetics … it happened with the imposed perception of the mother as a temporary container rather than as the origin of life, and as a nutritional apparatus for new bodies both born and unborn. In the second place, birth ceased to bring into the world living beings who lived their lives to the fullest and in a unity of mind and body. Birth was limited instead to providing humans with a body, which came from the paternal lions, while their intellect emerged and lived in disembodied regions.68

With the aid of Cavarero’s analysis, we can see why, within the logic of patriarchy, there exists an anxiety to regulate women’s reproductive choice. Within patriarchal discourse, reproduction is constructed as a function that requires state regulation. It is therefore not a surprise that, in many instances, the foetus or embryo (as promise of true life) is accorded as much importance if not more than the individual woman in such regulation. The counterproductive nature of state imposed reproductive rights, as in the case of abortion laws, is for Cavarero the contemporary legacy of: the original matricide. The violence against Demeter continues. Her injured body (physis), cannot content itself with a merely symbolic survival in the testimony of clandestine abortions, or in the partial compromises conceded by the law.69

Reproduction robbed of its power becomes a mere social function that needs to be regulated. According to this logic, Cavarero observes: to leave demographic issues to any single woman’s sovereign choice … would be contrary … to maternal power reduced to a social function, and to a public interest claiming to be universal … Since women are the ones who produce citizens, this production must be guided, planned, and controlled.70

Abortion legislation, for example, always envisages the ‘ways and contexts in which a woman’s decision to have an abortion must be made.’71 The fact that the law is a product of a patriarchal legislative scheme means that women’s choice is not valued as such.72 What is valued, in effect, is the potential for true life, which is housed temporarily in the female body. For Cavarero, maternity’s power is ‘regulated by public norms within the public order’.73 Even though in modern embryology, according to Cavarero, equal roles are accorded to ovum and sperm, the symbolic frame remains the same. In Cavarero’s view, this symbolic frame functions as follows: the function of maternity is reproductive, and the function of reproduction is social. Both are made to belong to the realm of human cohabitation, and both are a matter of public interest that can be regulated by laws. This has an even simpler consequence: politically 68 Ibid., p. 73. 69 Ibid., p. 79. 70 Ibid., p. 74. 71 Ibid., p. 74. 72 For a visceral account of this everyday dehumanisation of women in contemporary Italian society, see Ballestra, Contro le donne nei secoli dei secoli. 73 Cavarero, In Spite of Plato, p. 73.

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The foetus seen as the potential for pure, abstract, eternal life is accorded symbolic legal recognition once ‘the act of regeneration has been pulled out of the sovereign space of maternal power’.75 As a result: birth has been removed not only from the sovereignty of maternal power but also from the basic feminine experience of maternity … not only maternity, understood as reproductive function, and the fetus, understood as legal subject, are concerns of the state, but so is the ovum, in its aseptic separateness and unpredictable wanderings through more or less compliant wombs.76

As a result, the sovereign power grants permission to choose to have an abortion in limited circumstances and retains the power to make the decision on the scope of reproductive choice. The possibility of female sovereignty over the birth-giving process is ruled out from the outset even in a so-called liberal piece of legislation. This leads Cavarero to conclude that maternal sovereignty should remain beyond legal regulation. Therefore it becomes not a matter of regulating for abortion or other aspects of reproductive medicine but a matter of not regulating, of demanding ‘a philosophy of birth capable of giving voice to this power; a voice that acknowledges the dignity of being alive … thanks to our common maternal origin, before our social integration into the fathers’ political order’.77 Rights might appear to improve the position of women before the law but without a symbolic transformation in the patriarchal ordering system women continue to be subordinate citizens. The analysis provided by theorists like Cavarero is important in helping us make sense of what is often termed as a disappearance of the feminist movement from the piazze.78 It would be more true to say that women or feminism didn’t disappear, but that they and it appeared in different spaces. Some liberal feminists were to reappear as politicians or party activists and campaigned for equality through legislation throughout the 1980s and 1990s. Others from the 74 Id. 75 Ibid., p. 75. 76 Ibid., p. 78. 77 Ibid., p. 80. Cavarero is influenced in her work by the thought of Hannah Arendt. The philosophy of birth espoused by Cavarero is a development of Arendt’s notion of natality. As Arendt observes: the new beginning inherent in birth can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting. In this sense of initiative, an element of action, and therefore of natality, is inherent in all human activities. Moreover, since action is the political activity par excellence, natality, and not mortality, may be the central category of political, as distinguished from metaphysical, thought. (Hannah Arendt, The Human Condition (Chicago, 1958), p. 8). 78 Although as we have seen women have returned to the piazze in large numbers, albeit in defensive mode, to protect the 1978 abortion legislation against the threats of the then government of Silvio Berlusconi to review it. See further www.usciamodalsilenzio.org/.

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radical wings stuck to the thesis adumbrated by Carla Lonzi that equality is a sham, another means of masculine colonisation of women. Cavarero’s thinking both with some of these radical groups (for example, Diotima in Verona, and also the Libreria delle donne di Milano), and later, after her split with Diotima, in many of her single authored academic pieces creates a framework for an interrogation of woman’s position in a society of so-called gender equality.79 Conclusion Italian society is not alone in valorising a patriarchal model of community over a relational model like that proposed by Cavarero. It is, however, the site of both practices. The former in the form of the bureaucratic state that sees each individual as separate and isolated while also forming part of a wider collective, and the latter manifested in the praxis developed over the last forty years of Italian sexual difference politics which calls for a relational politics cut loose from state hegemony.80 Despite the power of the extra-parliamentary feminist movement in 1970s Italy, the law on abortion would not have been approved without the necessary compromise with male political elites. This is what the radical theorists recognised from the start. We should therefore not be surprised that an act of compromise such as that represented by the abortion legislation should lead to a situation in which women’s interests are relegated to a secondary position behind the interests of male legislators and the medical profession. This is but one example of how victories have been achieved by women in the form of new legislation only to be impaired in practice by a cultural thinking that did not coincide with women’s desires. If woman’s material existence is denied by the male symbolic order, then the body of woman is seen not as a space of autonomous decision-making but as a container for reproducing the nation. This fuels a masculine politics of survival that attempts to impose a narrative that valorises true life over mere embodied life.

79 See further on Cavarero’s political and philosophical background, Rosi Braidotti, “Introduction” in Adriana Cavarero, In Spite of Plato, Carole Lazzaro-Weis, ‘The Concept of Difference in Italian Feminist Thought: Mothers, Daughters, Heretics’, in Graziella Parati and Rebecca West (eds), Italian Feminist Theory and Practice: Equality and Sexual Difference (Madison, 2002), and Paul A. Kottman, ‘Translator’s Introduction’, in Adriana Cavarero, Relating Narratives: Storytelling and Selfhood (London, 2000), pp. vii–xxxi. 80 For an overview of the history of Italian feminist thought, see Parati and West (eds), Italian Feminist Theory and Practice. See further Adriana Cavarero, ‘Il pensiero femminista. Un approcio teoretico’, in Adriana Cavarero and Franco Restaino, Le filosofie femministe: Due secoli di battaglie teoriche e pratiche (Milan, 2002), pp. 78–115.

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Chapter 4

Vitapolitics: The Campaign Against Reproductive Choice Until twenty years ago, an expression such as ‘embryo rights’ would have been judged preposterous and inconceivable … the formulas of rights were established … ignoring the reality of life, which is marked by a need for others. It is the disregard for this reality of life that explains how it is also only possible to speak of the exclusive rights of a being such as the embryo whose sustenance depends 100% on the acceptance of another being.1

Introduction In Luisa Accati’s historical scholarship on the construction of women in Italian society we can draw certain parallels with Adriana Cavarero’s philosophical account of patriarchal hegemony.2 Accati’s analysis helps us to make connections between the symbolic construction of women and their material condition in Italian society.3 She claims that Italian society is matriarchal but it is a matriarchy that values sons to the detriment of daughters. Within the framework of traditional heteropatriarchal Italian social organisation, women, as mothers, see in their sons their true vocation. Women as mothers sacrifice themselves for their sons. In other words, the maternal gaze is directed towards the son not the daughter. Within the patriarchal paradigm woman is constructed as a mere vessel that contains a sacred host, the foetus or embryo, figured as male. It becomes an implanted agent of biopolitical decisionmaking, a surrogate sovereign. If the sacred embryonic son is sovereign then the material life of the woman as mother is reduced to a mere tabernacle.4 Accati links the traditional model of woman as sacrificial mother to contemporary campaigns by the hierarchy of the Roman Catholic Church to return to a traditional

1 Luisa Muraro, ‘The Passion of Feminine Difference Beyond Equality’, in Parati and West (eds), Italian Feminist Theory and Practice, pp. 77–87, p. 81. 2 See my discussion of Cavarero’s work in Chapter 3. 3 Luisa Accati, ‘Explicit Meanings: Catholicism, Matriarchy and the Distinctive Problems of Italian Feminism’, Gender and History, 7 (1995): 241–259. 4 Accati is not alone in observing the phenomenon of son worship in Italian society. As Barzini has observed: ‘There must be children … especially sons who can carry on the name. Nothing should be spared to produce them. Everything is done for them in Italy. They are the protagonists of Italian life. Their smallest wishes are satisfied.’ (Luigi Barzini, The Italians (New York, 1964), p. 194.)

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familial model in which women’s primary role is as mother and carer. She observes in this regard that: It is noteworthy that the current Pope’s campaigns ‘for life’ are based on identification with the fetus, and not with the child as a separate person, distinct from the mother. This identification obliterates the real mother in favour of the ideal mother. So it is the life of the fetus – the sacred part of the mother – which decides the life or death of the mother.5

The model provided by Accati goes some way towards explaining how a law that favours the interests of the embryo over those of women could be successfully placed on the policy agenda in modern Italy. The Campaign against Reproductive Rights The embryo is ‘one of us’6 exclaimed Francesco D’Agostino in one of his frequent media appearances in the latter half of the 1990s. This was not a partisan representative of a right-wing traditionalist group, propounding his views on one of Italy’s many television chat shows, but the then president of Italy’s National Bioethics Committee (Comitato Nazionale di Bioetica)7 discussing the Committee’s 1996 report on The Identity and Status of the Human Embryo, which called for the embryo to be treated as a person from the moment of conception.8 The phrase ‘the embryo is one of us’ is used in the Committee’s Report to justify restrictions on medical treatment and research in the interests of embryo protection. The Report notes: The embryo is one of us: this phrase explains well the basic bioethical concern that emerges from our document: the sense of placing a limit on possible technological interventions. 9

The rhetoric of the Report is unmistakably that of the communal ‘we’, the ‘we’ as one homogenous mass, sharing one ethical outlook. By claiming that the embryo was already a member of the community of human persons, the Committee conferred on the embryo the status of a subject worthy of rights. This model sits uncomfortably with a properly pluralist model of bioethical regulation. As Jurgen Habermas has observed in this regard:

5 Luisa Accati, ‘Explicit Meanings’, p. 249. 6 See Chiara Valentini, La fecondazione proibita (Milan, 2004), pp. 110–122. 7 The Committee was established in 1990 by the then Christian Democrat Prime Minister, Giulio Andreotti. For most of its existence it has been an overwhelmingly male and predominantly conservative body. 8 Comitato Nazionale di Bioetica, Identita e statuto dell’embrione umano (Rome, 1996), available at www.governo.it/bioetica/testi/220696.html. 9 The original reads: ‘L’embrione è uno di noi: questa frase … esplicita bene l’atteggiamento bioetico fondamentale che emerge dal nostro testo: il senso del limite al nostro possible operare tecnologico.’ (Comitato Nazionale di Bioetica, Identita e statuto dell’embrione umano (Rome, 1996) available at www.governo.it/bioetica/testi/220696.html, p. 3).

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As a member of a species, as a specimen of a community of procreation, the genetically individuated child in utero is by no means a fully fledged person from ‘the very beginning.’ It takes entrance in the public sphere of a linguistic community for a natural creature to develop into both an individual and a person endowed with reason. In the symbolical network constituted by the relations of mutual recognition of communicatively acting persons, the neonate is identified as ‘one of us.’ He gradually learns to identify himself – simultaneously as a person in general, as a part or a member of his social community [or communities], and as an individual who is unmistakably unique and morally nonexchangeable.10

In its Report the National Bioethics Committee departed from the generally accepted tenet of liberal pluralist societies that an individual does not attain rights-bearing status until they are born. It opted instead for a model of community that makes sense only in terms of Roman Catholic moral teaching. Such a rhetoric actively denies the reality of the pluralist state. The fact that within the media and public sphere credibility could be given to a proposition which conflicted with the founding liberal principles of individual autonomy to be found in the 1948 Constitution11 as well as with the rights accorded to women in the Abortion Law of 1978, reflected not a contradiction but was yet another example of the dual cultural allegiances in a society both Catholic and pluralist, modern and traditional.12 In the case of Italian reproductive politics in the 1990s, neo-conservative politicians began to refer to the unregulated assisted reproduction sector as the ‘Far West’.13 This description was far from a neutral observation. It was part of an ultimately successful campaign by pro-life groups to redefine the debate around reproductive rights. This strategy was, in part, provoked by the defeat of traditionalist groups in the struggle for legalised abortion in the 1970s and 1980s. This characterisation of the state of reproductive medicine in Italy had as its aim not the effective governance of the field but the reinstating of Roman Catholic family values in law. In order to instantiate the idea of an ordered model of human reproduction in law one has first to create an imagined scenario of chaos and lawlessness, a spectral enemy. By creating this scene of chaos, which required immediate taming by the law, the political right was engaging in a politics of 10 Jurgen Habermas, The Future of Human Nature (Cambridge, 2003), p. 35. 11 For an analysis of the constitutional debates around secularism and the character of the new post-fascist Italian state, see Gino Bedani, ‘The Dossettiani and the Concept of the Secular State in the Constitutional Debates: 1946–7’, Modern Italy, 1 (1996): 3–22. 12 For more detailed analysis of the social, cultural and political make-up of contemporary Italy, the reader is referred in particular to Paul Ginsborg, Italy and Its Discontents: Family, Civil Society, State, 1980-2001 (New York, 2003). 13 The term is a conflation of the English terms Wild West and Far East and appears to be a mistaken appropriation of the term Wild West. See Eleonora Cirant, Non si gioca con la vita: Una posizione laica sulla procreazione assistita (Rome, 2005), p. 180. See further, Federico Neresini and Franca Bimbi, ‘The Lack and the Need of regulation for assisted fertilisation: The Italian Case’, in Ann Rudinow Saetnan, Nelly Oudshoorn, and Marta Kitejczyk (eds), Bodies of Technology: Women’s Involvement with Reproductive Medicine (Columbus, Ohio, 2000).

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immunity, which attempts to erect symbolic boundaries between what is considered natural and that which is seen as excessive.14 The metaphor of the ‘Far West’ evokes a scene of a lawless womb, beyond the control of patriarchal power. The pro-life campaign wanted to curb IVF provision, seeing it as interfering with the ‘natural’ process of reproduction. Ironically, the person who coined the phrase was a female parliamentarian, Irene Pivetti. Her views on the issue were in line with the traditionalist pro-life views of the Roman Catholic Church. Pivetti was a former President of the Chamber of Deputies and a member of the Northern League (La Lega Nord).15 Conservative forces have had a powerful ally in the Roman Catholic Church in their attempt to introduce restrictive policy in this area. Despite the fact that Article 7 of the Italian Constitution states explicitly that Church and State are separate entities,16 the Vatican has wasted no time in lobbying assiduously for a law that protects ‘life itself’ in the abstract. By 1994 when Irene Pivetti made her intervention in the debate on assisted reproductive technology, the mass feminist movement was no longer the force it had once been. It had splintered, with some of its membership entering mainstream party politics, and others remaining on the margins of politics, steadfast in their refusal that legislative change could bring about the transformation of women’s symbolic position. This latter phenomenon of ‘diffuse feminism’ saw the transformation of the feminist movement from a mass force which could bring about political change to one which intervened in a more subtle manner at the level of everyday life to bring about a transformation in women’s consciousness. By the 1980s the phenomenon of feminism as a mass movement began to change. As Becalli has observed:

14 See further, Neresini and Bimbi, ‘The Lack and the Need’. On the notion of immunity as integral to the political order, see Roberto Esposito, Immunitas: Protezione e negazione della vita (Torino, 2002). 15 La Lega Nord (The Northern League) emerged in the 1980s as a movement campaigning for increased regional autonomy in Northern Italy, particularly in the regions of Lombardia and Veneto. The party asserts the cultural autonomy of the northern region and calls for an independent Padania (roughly the area which is traversed by the River Po). It seeks to do this by highlighting the region’s cultural difference from the rest of Italy. It is highly anti-statist and despises both Rome, as the sign and site of a centralised Italy, and the South of Italy, which it views with disdain and explicit racism. It also supports a notion of citizenship that is patriarchal, exclusionary, and nationalist (seeing Padania as the national entity, as opposed to Italy, which they see as an artificial, Rome-imposed construct). See for a full analysis, Anna Bull and Mark Gilbert, The Lega Nord and the Northern Question in Italian Politics (London, 2001). 16 De jure, the Roman Catholic Church has no role in the running of the state in Italy. However, in fact, behind the scenes it continues to wield a huge amount of power. The Constitution of the Italian Republic states in Article 7 that Church and State are separate entities and that their relationship is governed by the Lateran Pacts concluded between the Vatican and Mussolini’s regime in 1929. The Lateran Pacts provided, inter alia, for the establishment of the Vatican as a sovereign city state; gave financial compensation for the loss of papal territories; allowed religious instruction to be extended to secondary schools; and recognised church marriages as being legally sufficient. See further Lesley Caldwell, Italian Family Matters, pp. 7–27.

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In the absence of a national issue to command public attention and around which to mobilize, the feminists’ autonomous activities lost the visibility they had achieved in the mid 1970s … As a political subject, Italian feminism altogether disappeared. Even in the campaign to defend the abortion law in … 1981 … while there was a wide popular mobilization, it was significantly not a specifically feminist one; the mobilization followed traditional divisions.17

In Franca Bimbi’s account, the move from the mass feminist politics of the 1970s to a more diffuse model of Italian feminism by the early 1990s took on the following structure: Within the movement some women … were more interested in feminism as marking a change in lifestyle and cultural involvement (‘diffuse feminism’) … ‘Diffuse feminism’ serves to differentiate current feminist ideas from the large collective movements of the 1970s. The main characteristic of diffuse feminism is that it emphasizes the differences between, and thus concentrates on cultural and political experiences linked to everyday life rather than on large-scale political projects. This approach has led to the formation of hundreds of groups involved in a socio-cultural debate on feminist themes … to academic research initiatives, consultancies and staff training … overall one could say that Italian feminism has been in difficulty since 1980, because its influence on political debate has been at the socio-cultural level rather than at the effective decision-making level.18

In this politics of everyday life what is important is the gradual transformation of women’s symbolic position through the practice of sexual difference politics. This was to be attained through the practices of autocoscienza (self-knowledge/ consciousness-raising) and affidamento (the transmission of such self-knowledge from one woman to another in a relational manner based on the model of a motherdaughter relationship).19 This praxis, developed in a group context, aimed to undo the dominant patterns of masculine social organisation by developing relations between women, which would eventually lead to a symbolic transformation. This theory of sexual difference was one that broke the barriers of theory and practice. Sexual difference thought was a practice of doing, acting on the self in relation with others to bring about a symbolic transformation. This phase in Italian feminism was innovative in terms of rethinking the position of women in the patriarchal state. Many feminist groups noted the irony that with increased liberalisation of women’s position in society came increased state regulation. As Calloni has put it: ‘with increases in the number of women secretaries of state, femocrats, and feminist advisers, gender issues and concepts became part of the state’.20 This increased state 17 Belinda Beccalli, ‘The Modern Women’s Movement in Italy’, New Left Review, 1 (1994): 86–112, p. 100. 18 Bimbi, ‘Gender, ‘gift relationship’ and welfare state cultures in Italy’, pp. 157–159. 19 See for a full discussion of the development of Italian sexual difference theory and practice the essays in Graziella Parati and Rebecca West (eds), Italian Feminist Theory and Practice: Equality and Sexual Difference (Madison, 2002). 20 Marina Calloni, ‘Debates and Controversies on Abortion in Italy’, in Dorothy McBride Stetson (ed.), Abortion Politics, Women’s Movements, and the Democratic State: A Comparative Study of State Feminism (Oxford, 2001), pp. 109, 181–203.

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feminism and gender mainstreaming on issues around work and family did not however filter into the debate on IVF. In fact, it was the one issue on which there was no broad policy agreement between different actors. Within feminism there was not a united stance on assisted reproductive technologies. Views ranged from the technology exploiting women’s desire to have a baby by unscrupulous private clinics to seeing development of this technology as a means by which to refine patriarchy’s construction of woman as incubator. Other feminist groups saw it as a means of liberating female reproductive choice from the control of heteropatriarchal forces. While radical feminism was rethinking the relation to law and rights in patriarchy, right wing pro-life pressure groups were operating within the system to undo the reforms in relation to abortion and other issues of individual self-determination. Debating a Regulatory Framework During the 1990s the political institutional framework of unstable coalition governments made it difficult for a controversial bioethical issue such as IVF and embryo research to win widespread support amongst the parties. This was so regardless of the position a party occupied on the political spectrum. Dependent for survival on diverse political partners, weak coalition governments were never likely to push legislation that might be deemed controversial. Political parties were very wary of introducing legislation that would lose them votes amongst devout Catholic voters. As Simon Fink notes in this regard: ‘the often-found relationship between Catholicism and patterns of public policy masks the real influential factor, namely individual religiosity … if Catholicism is not backed by individual religiosity, it does not have influence on public policy.’21 The levels of religiosity remain comparatively high in Italy in relation to other European Catholic countries such as, for example, Ireland and Spain. Since the birth of the first test tube baby in Italy in 1983, politicians of all ideological hues have been making calls for the regulation of reproductive medicine.22 However there has been a continuing divide between those who favour a restrictive model based on the teachings of the Roman Catholic Church and those who favour a secular model akin to the model found in the United Kingdom’s Human Fertilisation and Embryology Act. Due to such deep disagreement a compromise measure could not be settled on. Government efforts were initially of the hands-off type but soon a partisan pro-life stance started to emerge that valued the interests of the embryo over the rights of women. The medical profession itself did not take a united public stance but was divided internally along similar religious-secular lines. 21 Simon Fink, ‘Why do some states regulate embryo research while others don’t? The impact of parties, institutions, economic interests and religious factors’, paper presented at the Workshop Die Konstruktion und Interaktion globaler, europäischer und nationaler Ordnungen, Graduiertenkolleg Märkte und Sozialräume in Europa, Otto-Friedrich-Universität Bamberg, 14–15 October 2004, p. 19. 22 For an overview of the background to the development of assisted reproductive medicine in Italy see Carlo Flamigni and Maurizio Mori, La legge sulla procreazione medicalmente assistita: Paradigmi a confronto (Milan, 2005), pp. 13–14.

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The first attempt to regulate the sector came in 1985 when the then Minister for Health, Costante Degan, introduced a circular, which prohibited all forms of donor insemination within the Italian national health service (Sistema Sanitario Nazionale). However, this prohibition was not extended to clinics in the private sector, which were growing rapidly without any regulation. Many of those clinics were exploiting the desire of couples to have a child by any means.23 However, the government saw fit not to introduce any regulation of the private sector. The circular also prohibited the freezing and preservation of embryos for use in the industrial or research sectors. This misguided attempt at regulation was one of the factors that gave rise to the ‘Far West’ epithet applied to the assisted reproduction sector. This led to the media representation of the IVF sector as a world out of control, where all sorts of monstrosities were being created. In this conservative rhetoric, women were accused of interfering with nature and became monstrous bodies who were manipulating nature and being manipulated by science. This manipulation of the socalled ‘natural’ process of reproduction was unacceptable for conservative opinion. As a result, a two-tier system of assisted reproductive services developed, one private and free from regulation, the other public and subject to great restrictions. The Degan Circular became the only, albeit partial, regulatory document for assisted reproductive technology in Italy. Regulation was partial in that it applied only to the provision of assisted reproductive technology in Italy’s national health service.24 The regulations were restrictive in that they specified that assisted reproduction with donated gametes was prohibited, and prohibited the creation and cryopreservation of embryos for deferred implantation, industrial use and scientific research. The Circular granted access to such procedures only to married couples. As Ramjoue and Kloti have observed, the Circular resulted: in unequal access to ART. Wealthy patients [could] afford faster access to a wider range of ART than those who depend[ed] on the [Italian National Health Service] for treatment and financial coverage. In the absence of a comprehensive regulation on ART, many techniques [were] available to a few, and few [were] available to many.25

The year before the introduction of the Circular, Degan had set up a ministerial Commission under the chairmanship of Fernando Santosuosso, a Law Professor and judge, to inquire into the regulation of this area. However, opposition politicians on the left immediately criticised the validity of such a Commission, given that Santosuosso himself and the majority of the members of the Commission supported the notion of embryo protection on grounds of principle, and were, as a result, far 23 See further Valentini, La fecondazione proibita, pp. 95–109. 24 The Italian National Health Service, the Servizio Sanitario Nazionale was established in 1978. In a piece of research published in 2004, Ramjoue and Kloti observed that 63 per cent of assisted reproduction centres were private with only 31 per cent in the public sector. See Celina Ramjoue and Ulrich Kloti, ‘ART policy in Italy: Explaining the lack of comprehensive regulation’, in Ivar Bleiklie, Malcolm Goggin, and Christine Rothmayr (eds), Comparative Biomedical Policy: Governing Assisted Reproductive Technologies (London, 2004), pp. 42– 63. 25 Ramjoue and Kloti, ‘ART policy in Italy’, p. 59.

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from impartial on the issues under review. The Santosuosso Commission completed its report in 1986.26 The Report recommended that embryo research should be banned; allowed IVF only for married couples; and called for all embryos created in the process to be transferred to the uterus simultaneously. The Commission also recommended that embryo donation be made available to married couples who had tried unsuccessfully to adopt a child. This latter situation was the only one in which the Commission would even entertain the idea of embryo donation. This recommendation was highly specific to a certain group, married couples who had been refused the opportunity to adopt. The Commission’s proposals were not subsequently adopted by the Government, leaving a legislative void in the area. This void was not adequately filled by the Degan Circular, which, if anything, made the situation even worse, in that it left the private sector effectively unregulated. This partisan anti-scientific approach was to provide a foretaste of the way in which the issue of assisted reproduction would be addressed by political elites in Italy for the coming twenty years. In 1989 a number of Bills were introduced which would have provided a legislative framework for the new reproductive technologies. These included one which would extend the provision of IVF to single women; another which would allow embryo cryopreservation and gamete donation and which would have extended provision of ART in both public and private clinics, and a third which would have given the embryo legal protection from the moment of conception. None of these Bills was successful given the lack of political will to legislate on the matter. In 1995, another Commission was established by the Ministry of Justice, under the chairmanship of Francesco Busnelli, to look into the area. This Commission was slightly more liberal in tone, recommending that donation of gametes be permitted. However, this was tempered by the Commission’s recommendation that single women not be allowed access to assisted reproductive services. The Report of the Busnelli Commission met the same fate as the Santosuosso Report, remaining unimplemented by the Government.27 The next attempt to address the question of regulating the assisted reproduction sector came in 1997 when a centre-left coalition government was in power. In 1997 the President of the Parliamentary Social Affairs Committee, Marida Bolognesi, announced that the Committee would begin an inquiry into the feasibility of legislation in the sector. In 1998 the committee presented a draft Bill which limited assisted reproduction to heterosexual couples who were either married or in a stable relationship but allowed both donor insemination and embryo research for therapeutic purposes. It also provided that the number of embryos produced in each treatment cycle should be limited to that amount strictly necessary for a single implantation, and in any case not more than four.

26 See further Commissione Ministeriale per una Specifica Normativa in Tema di Fecondazione Artificiale Umana, Prima Proposta: Norme sui procedimenti non naturale per la fecondazione con seme di marito. Seconda Proposta: Norme della fecondazione artificiale umana e sui tratamento di gamete ed embrioni (Rome, 1986). 27 See further Flamigni and Mori, La legge sulla procreazione medicalmente assistita, p. 28.

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However, during its passage through both houses of the Italian Parliament, the Bill was subject to several amendments, which would transform its structure and tone radically. The amendments were added by a cadre of Roman Catholic conservative parliamentarians whose aim was to ensure that the rights of the embryo be firmly implanted in the Bill. The Bill was amended to include a stipulation that in the carrying out of assisted reproductive services, regard should be given to the rights of all parties involved including, in particular, those of the embryo. The Bill was further amended by the introduction of a ban on the freezing of embryos, the limiting to three as the maximum number of embryos to be produced and implanted in any one treatment cycle, and, even more alarmingly, an amendment was added that would allow for the adoption of embryos as if they were children. Marida Bolognesi resigned as the sponsor of the Bill, as she felt that, in its transformed state, she could no longer support it. She was replaced by Alessandro Cè of the Northern League, whose sympathies were of a far more conservative nature. The Chamber of Deputies approved the amended Bill by a majority of 266 to 153 on 26 May 1999. Once the Bill arrived in the Senate for approval, the role of sponsor was taken over by Francesco Varella of the Green Party. He attempted to undo some of the more extreme amendments made in the lower house. The passage of the Bill through the Senate was delayed by the decision to suspend discussion until after the administrative elections scheduled in several regions for April 2000. Because of unfavourable results for the centre-left in these elections, the Prime Minister Massimo D’Alema was replaced by Giuliano Amato who himself had expressed his support for a more conservative approach to the regulation of assisted reproduction.28 Once the Bill resumed its passage through the Senate, certain parts of the text, which had been amended in the lower house, were further amended. This included the removal of the reference to the embryo as being possessed of rights. However, the proposed legislation was eventually abandoned due to the fall of the coalition government.29 Conclusion In Italy the happy living together of so-called theo-conservatives (teocons)30 and theo-democrats (teodems)31 has had a detrimental impact on the liberalisation of matters in relation to access to reproductive services in recent years. With the blurring of the lines between the secular and the religious in this regard, a situation has arisen where a true representative politics is not being advanced in matters of bioethical controversy.32 It would seem that the Vatican’s continuing crusade to 28 See Amato’s call for legislation which would respect the sanctity of life of the embryo in Giuliano Amato, ‘I diritti dell’embrione’, Liberal, March (1997) available at www.geocities. com/centrotobagi/ embrione.html. 29 See further Eleonora Cirant, Non si gioca con la vita: Una posizione laica sulla procreazione assistita (Rome, 2005), pp. 182–184. 30 To be found broadly on the right of the political spectrum. 31 To be found amongst the ranks of centre-left politicians. 32 This is true of all aspects of Italian politics. This was to be seen particularly clearly during the years of Silvio Berlusconi’s period in office from 2001 to 2006. See further

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uphold the ‘sanctity of life’ is being successfully translated into social policy. This is alarming at many levels, not least of which is the inability of the secular state’s agents to recall the founding pluralist values of the Italian Republic. We have, as a result, a curious merging of the religious and the secular under a common ‘culture of life’. This situation is made even more absurd by the fact that party politicians are not engaged in a principled battle for the ‘culture of life’ something that the Vatican at least claims to be engaged in. Politicians of all sides are merely bending to Vatican demands in the area of bioethics in order to secure political backing from the Church, which continues to wield enormous power in a society where the majority of citizens profess to be Roman Catholic, in name at least. It is this fear in the minds of politicians of losing office due to an organised Church campaign in parliamentary elections that drives the enormous concessions given to the Church in this area. Given this state of affairs, it is no surprise that when the Italian state decided to start thinking about how bioethical issues should be managed at the policy level, one of its first initiatives, the National Bioethics Committee, turned out to be a mere mouthpiece for patriarchal and Roman Catholic values. This, together with policy choices in the field of human reproduction, has demonstrated successive governments’ concern that the tone of such regulation be overtly Catholic in nature. The consequences of this approach are a retarding of political debate in relation to objective regulation of reproductive technologies and a tendency to ignore scientific reality in the interests of upholding a very particular set of ethical values. This is not to say that liberal models of bioethics do not exist in Italy. There is a rich debate on this area and on the surface a liberal model of rights in relation to healthcare appears to operate in tandem with more culturally traditionalist models of ethical governance of medicine. However the fact remains that Italy has moved from a situation of no formal legal governance of the field of assisted reproduction to a model that upholds the interests of the embryo over that of women. This has come about as the result of a particular conflation of circumstances, namely, a successful campaign on the part of the Church and lay Catholic interest groups to bring the issue of the sanctity of embryonic life back on the legislative agenda; the lack of any ideological commitment on the part of the main political parties in this area, the continued reliance on the part of politicians on Church support, and the gradual weakening of the influence of feminism as a mass political movement.

Ginsborg, The Politics of Everyday Life, pp. 1–11, and Ginsborg, Silvio Berlusconi. Indeed Berlusconi can be seen as the apotheosis of the ‘anti-politician’, who sees representative democracy as a means only for personal gain.

Chapter 5

The Embryo’s Sovereign Power the embryo’s moral status and concrete destiny reveal, and will always reveal, arbitrary social choices.1 Because they challenge cultural notions about what is natural, and indeed, experiment with technologies that explicitly defy such notions, consumers of new reproductive technologies threaten the status quo – the cultural ideologies and institutional forces that exert power over people’s lives and that resist change.2 The neutral state, confronted with competing claims of knowledge and faith, abstains from prejudging political decisions in favor of one side or the other.3

Introduction The coming to power of a relatively stable right of centre government in 2001 together with the continued influence of the Roman Catholic Church over many voters and politicians, and the comparatively high degree of religiosity in Italy created the ideal political environment in which to introduce a restrictive law on assisted reproductive technologies. In 2004 the Italian legislature approved a new law on assisted reproduction that narrows the scope of women’s reproductive freedom and accords symbolic legal recognition to the embryo.4 The new law prohibits the testing of embryos for research purposes, the freezing of embryos, and outlaws pre-implantation genetic diagnosis for the detection and prevention of genetically transmitted diseases. The law also prohibits donor insemination, denies access to assisted reproductive technologies to single women and ordains that no more than three cells may be fertilised in vitro and that these be transferred to the womb simultaneously. Once couples agree on the treatment they will not be allowed to withdraw their consent. Moreover, those doctors who attempt to carry out procedures prohibited by the legislation face prison terms or fines, in addition to suspension from the medical register. The text of the law paints a bleak picture of woman as reproducer first and foremost. It excludes other familial formations, such 1 Simone Bateman Novaes and Tania Salem, ‘Embedding the Embryo’, in John Harris and Soren Holm (eds), The Future of Human Reproduction: Ethics, Choice and Regulation (Oxford, 1998), pp. 101–126, p. 126. 2 Gaye Becker, The Elusive Embryo: How Women and Men Approach New Reproductive Technologies (New York, 2000), p. 249. 3 Jurgen Habermas, The Future of Human Nature (Cambridge, 2004), p. 105. 4 Legge, 19 February 2004, n.40, ‘Norme in materia di procreazione medicalmente assistita’ (Gazzetta Ufficiale n. 45 del 24 February 2004).

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as gay and lesbian couples, from the provision of reproductive technologies and thus has at its heart an ideal of the family that is at odds with current societal realities. The embryo’s occupation of legal space is the outcome of a crusade by a wellorganised alliance of theo-conservatives. These groups, as we have seen in the previous chapter, see in reproductive medicine an uncontrolled interference with their notion of the natural order of things. Such a worldview requires a total ban on stem cell research, limitation of access to reproductive technologies and repressive laws to govern the area. This conservative dream scenario has come closer to being realised by the introduction of a law doing all of these things in the name of the protection of ‘Life’. In the case of this law, the ‘Life’ to be protected is the embryo. In the name of ‘Life’, scientific advances and individual liberty have been curbed. The Embryo in Legal Space After the failure of the centre-left government’s attempt to pass legislation on assisted reproduction, the incoming centre-right government under Silvio Berlusconi reopened discussion of such a law after coming to power in 2001. On this occasion, with a centre-right majority, the conditions for the passing of a more restrictive prolife law were in place. By 2002 the new government had secured the approval of a revised draft of the previous Bill in the Chamber of Deputies. The revised Bill granted the embryo symbolic legal recognition, and prohibited both embryo freezing and donor insemination. After its initial approval, the Bill remained in limbo awaiting further discussion in the Senate. The Government did not appear to be in a hurry to speed the Bill through to final approval. However, the Vatican decided to expedite matters and once more exerted its influence on an apathetic Government. In February 2003, on the occasion of the anniversary of the signing of the Lateran Pacts of 1929, representatives of the Government attended a meeting with Vatican officials.5 On this occasion, the Pope’s displeasure at Government policy in relation to its support for the war in Iraq, the implementation of discriminatory legislation on immigration, the so-called Bossi-Fini law (named after its instigators, the leaders of the separatist Northern League and of the former neo-fascist National Alliance respectively), and the Government’s opposition to the introduction of a system of clemency for prisoners, was communicated to the Government. The Vatican pointed out that the swift approval of a law on assisted reproduction in line with its 5 The Lateran Pacts were concluded between the Vatican and the fascist regime on 11 February 1929. The pacts gave official recognition to the special position of the Church in Italian politics. The Pacts recognised Roman Catholicism as the state religion as well as giving many concessions to the Vatican, including tax exemptions for employees of the Holy See, exemption from jury service for the clergy, and providing for the teaching of Christian doctrine in primary schools. The Pacts were given continued recognition in the post-fascist republic by virtue of Article 7 of the Constitution of 1948 which provides as follows: The State and the Catholic Church are, each within its own ambit, independent and sovereign. Their relations are regulated by the Lateran Pacts. Such amendments to these Pacts as are accepted by both parties do not require any procedure of Constitutional Revision.

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thinking would go some way to winning back its approval and, more importantly, its political backing.6 After this meeting the Government’s lethargic position on assisted reproduction legislation, coincidentally or not, underwent a sea-change. By December 2003, the Government had obtained approval of the draft legislation on assisted reproduction in the Senate, without any significant amendments. The Bill became law on 10 February 2004 after final approval by the Chamber of Deputies. Significantly, the centre-left opposition did not act to oppose the legislation in spite of its blatantly unconstitutional and anti-liberal nature. In fact, there seemed to be no major difference between the opposition and the Government on the issue when it came to the final vote. They seemed to have a common interest in pushing the law forward based on shared patriarchal values.7 Francesco Rutelli, leader of the centre-left Margherita party,8 declared that his party members should be allowed to vote according to their conscience on the law. Rutelli’s conscience and those of many of his party colleagues led them to vote for the Act, leading to the absence of any effective parliamentary opposition.9 The matter is complicated by the fact that many of the proponents of the so-called centre-left are avowed Catholics who have clear views on the sanctity of life of the embryo. These so-called teodems include Giuliano Amato, the current Minister for the Interior, and the current Prime Minister, Romano Prodi, former leader of the Catholic influenced Popular Party. This made united opposition to the law by the so-called opposition unlikely. This, as we will see, poses problems for any future legislative intervention to repeal this law. The 2004 law gives implicit legal recognition to what is termed the concepito, literally ‘that which is conceived’.10 Article 1 (1) of the law states: subject to the conditions and according to the means set out in this Act, which guarantee the rights of all subjects involved, including the concepito, access to assisted human reproduction services is permitted in order to facilitate the resolution of reproductive problems caused by human sterility or infertility.

The term concepito is derived from the Latin verb concipere which denotes to absorb or to collect, to take together, to receive into oneself, or to take into oneself, which in the case of women was taken to mean to welcome into oneself, to conceive, to 6 See further Valentini, La fecondazione proibita (Milan, 2004), and Flamigni and Mori, La legge sulla procreazione medicalmente assistita, pp. 39–42. 7 There were of course exceptions including the Radical Party, and some dissident voices in the larger parties. See further, Cirant, Non si gioca con la vita, pp. 190–204. 8 Literally ‘The Daisy’. The party’s full title is Democrazia e Liberta (Democracy and Freedom) and was formed as a result of a merger of the Italian Popular Party (PPI), the Democrats, Italian Renewal and the Democrat’s Union for Europe. 9 See further Valentini, La fecondazione proibita, pp. 123–136, and Chiara Lalli, Libertà Procreativa (Napoli, 2004), pp. 163–165. Rutelli’s argument was that any legislation, however flawed, was better than none. However, in this case, it was obvious that Rutelli had his eye on the Roman Catholic vote, which is still substantial. 10 The term concepito is also used in the 1978 Abortion Act (Legge 22 May 1978, n. 194, ‘Norme per la tutela sociale della maternita e sull’interruzione volontaria della gravidanza’).

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become pregnant. This broad term concepito encompasses all stages of pre-natal development including both the embryo and the foetus. In Article 1 (1), the legislation speaks of assuring the rights of all subjects involved in the process, including the concepito. In this way, the law implies, without explicitly stating, that the embryo has rights of some kind, which are deserving of legal protection. This immediately sets up a conflict between the rights of the prospective parent/s on the one hand and the embryo on the other. However this is the only article in which the term concepito is employed. In the rest of the Act the object of legal protection is named as the embrione, the embryo. The fact that the more vague and all-encompassing term concepito is used only in the opening article could be seen as the signalling of a particular ideological view in relation to the manner in which life is conceived. In this case using the term concepito could imply that all unborn life once conceived is deserving of protection. As Fenton points out: Nowhere in Italian law is it stated that the embryo has legal status; nonetheless, the effect of the new law and subsequent case-law may well be to give the foetus legal status by the back door. The law establishes the rights of the unborn from the moment when the woman accepts the fertilization of her eggs.11

In this regard, the law stands in opposition to the provision in Article 31 (2) of the Constitution of the Italian Republic, which states that no protection independent of the mother shall be accorded to the unborn.12 Moreover, the Constitutional Court has held that the welfare of the embryo or foetus does not override a woman’s right to health.13 Under the 2004 law, access to in-vitro fertilisation is limited to those categorised as infertile or sterile couples. Couples who are not so defined but who are carriers of a hereditary genetic condition cannot have access to assisted reproductive services. Ironically, it is such couples who have no other choice but to seek these services given the risk of transmitting the condition to their offspring if they conceive ‘naturally’. This accords with the philosophy behind the law, that there is no right to have a family, but rather a duty to have one irrespective of the consequences for the couple or the future children. This has caused great difficulty for couples who are carriers of hereditary genetic illnesses, who are now no longer able to obtain pre-implantation genetic diagnosis in order to determine whether their embryos are affected by such illnesses. This interferes both with the couple’s right to receive information in 11 Rachel Fenton, ‘Catholic Doctrine Versus Women’s Rights: The New Italian Law On Assisted Reproduction’, Medical Law Review, 14 (2006): 73–107, p. 104. 12 Article 31 states in full: The Republic furthers family formation and the fulfilment of related tasks by means of economic and other provisions with special regard to large families. The Republic protects maternity, childhood, and youth; it supports and encourages institutions needed for this purpose. 13 See the decision of the Constitutional Court of 18 February 1975, Corte Costituzionale, sentenza n. 27 of 18 February 1975. See further my discussion of this case in Chapter 3.

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relation to making health care decisions, and their ability to fully consent to such procedures based on a full knowledge of all the consequences involved in going ahead with the pregnancy. Article 4 prohibits donor insemination.14 Here the law allows only assisted reproduction using the egg and sperm of the couple involved (homologous reproduction) and prohibits the use of genetic material from third parties (heterologous reproduction). This reflects a particular ideological narrative, which sees homologous reproduction, that is, reproduction using genetic material from the couple, as natural, and heterologous reproduction, that which uses donated genetic materials, as offending against nature. One cannot state objectively that homologous reproduction is in fact homologous. This is a socially imposed affinity based on an officially recognised social tie, that is marriage or a stable relationship.15 The mixing of sperm and egg is the same in both cases of homologous and heterologous reproduction. The only difference is that in the former the social tie of the respective parties is regarded as natural by the religious right but in the latter case, donor insemination is considered unnatural by such groups. This was clearly manifested in the debate on the legislation in the Italian Parliament where those who supported the law likened donor insemination to adultery, resulting in the birth of a child who was not that of the husband.16 As one member of the governing centre-right coalition declared, donor insemination was tantamount to ‘genetic adultery’. Another claimed that it was equivalent to a woman giving birth to a child following an affair with a milkman. All supporters of the law agreed that this aspect was somehow destructive for the notion of the heterosexual family unit. Another noted that it was unacceptable that the male partner/husband should be substituted by another. The narrative thus constructed was one in which the patriarch was usurped by a cunning wife in collaboration with a mysterious third party who would donate his sperm and then abandon the child to be brought up by the cuckolded father. That such ill-informed and demeaning rhetoric should pass for valid parliamentary debate on such an important matter stretches the boundaries of credibility. What is more surprising is that such a narrative won widespread support and was eventually accepted as a reason for prohibiting such a form of insemination. Such a discourse recalls a time when adultery on the part of the female partner was classified as a crime. This now defunct law, introduced during Mussolini’s regime, and finally repealed in 1968 provided that in cases of adultery it was the woman involved and not the man who was subject to prosecution and punishment of up to a year in prison.17 This was in line with fascist thinking on the dominant role of the father in society and the treatment of women as tantamount to chattels.18

14 Article 4 (3) notes: ‘È vietato il ricorso a tecniche di procreazione medicalmente assistita di tipo eterologo’. 15 See further Bruno Latour, Les microbes: Guerre et paix (Paris, 1984). 16 For a detailed analysis of the parliamentary debates on the law on assisted reproduction see Lalli, Libertà Procreativa, pp. 129–171. 17 See Cirant, Non si gioca con la vita, p. 209. 18 See Lucia Chiavola Birnbaum, Liberazione della donna: Feminism in Italy (Middletown, Connecticut, 1986), pp. 31–40.

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In Article 5, the law limits access to assisted reproductive services to adult heterosexual couples who are either married or in a stable relationship, are of a potentially fertile age and are both living. Thus, the law makes it clear that the value of the heterosexual couple is accorded recognition over and above other familial formations. In addition the arbitrary inclusion of the term ‘potentially fertile age’ which is not further defined would appear to bar access to the procedure to older women in particular.19 Article 6 (3) allows consent to the procedure to be withdrawn only up to the point at which the egg is fertilised. This leads to a bizarre result whereby the woman involved could potentially be forced to go through with the procedure once the egg is fertilised.20 This forced consent measure, as well as going against all principles of autonomy, also breaches Article 32 (2) of the Italian Constitution, which states that no person shall be subjected to medical treatment without legal sanction and that the law can in no manner violate the limits imposed by the need to respect human dignity. Article 13 of the law prohibits experimentation on human embryos. Specifically, the law prohibits the production of embryos for research, all embryo selection for eugenic purposes, cloning, and inter-species fertilisation. This aspect of the legislation has curtailed research into genetic illnesses. It also operates in conjunction with Article 12 to prevent pre-implantation genetic diagnosis, as, under a rigid interpretation of the law, such a procedure could be seen as being for ‘eugenic’ purposes. The Referendum Campaign: The Failure of Ethopolitics After the passing of the new law in February 2004, the Radical Party acted as the main promoter of the call for its repeal. The means by which the opposition sought to modify the law was through the mechanism of the repeal referendum (referendum abrogativo), a mechanism used over twenty years previously by the right to life alliance in its attempt to repeal the 1978 abortion law. This mechanism requires that the petitioners for a referendum obtain at least 500,000 signatures of citizens with the right to vote. This form of referendum allows the petitioners to outline their proposals for either partial or total repeal of the legislation in question. Once

19 Article 5 states in full: Fermo restando quanto stabilito dall’articolo 4, comma 1, possono accedere alle tecniche di procreazione medicalmente assistita coppie di maggiorenni di sesso diverso, coniugate o conviventi, in età potenzialmente fertile, entrambi viventi. 20 Article 6 (3) states: La volontà di entrambi i soggetti di accedere alle tecniche di procreazione medicalmente assistita è espressa per iscritto congiuntamente al medico responsabile della struttura, secondo modalità definite con decreto dei Ministri della giustizia e della salute, adottato ai sensi dell’articolo 17, comma 3, della legge 23 agosto 1988, n.400, entro tre mesi dalla data di entrata in vigore della presente legge. Tra la manifestazione della volontà e l’applicazione della tecnica deve intercorrere un termine non inferiore a sette giorni. La volontà può essere revocata da ciascuno dei soggetti indicati dal presente comma fino al momento della fecondazione dell ovulo.

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the requisite number of signatures is obtained the referendum proposals are then scrutinised for admissibility by the Constitutional Court.21 Subsequently a referendum committee was formed made up of an alliance of the Radical Party, representatives of parties of the centre-left, the Green Party, and other interested parties, including scientists, doctors, and patients’ groups. In their original set of referendum proposals the referendum committee called for the total abrogation of the legislation. In addition, and in the event that the Constitutional Court would reject this proposal, four proposals, which would partially repeal the legislation, were also proffered. The first of these would partially repeal articles 12, 13 and 14 of the Act, and thereby remove the ban on embryo freezing and embryo experimentation. The second proposal would lead to the partial amendment of articles 1, 4, 5, 6, 13 and 14 thereby repealing the limitation on three embryos to be transferred simultaneously, and removing the limitation on access to such procedures to sterile or infertile couples alone. This would allow couples who were carriers of genetic disease access to such services. The third proposal would remove the legal recognition of the embryo. This would have led to the total repeal of article 1 and partial repeal of articles 4, 5, 6, 13 and 14. The final proposal would remove the ban on donor insemination. This would lead to the repeal of articles 4, 9 and 12. Once the required signatures were obtained, the referendum proposals were submitted to the Constitutional Court to test admissibility. The Court decided to allow four out of the five proposed referendum proposals. The proposal that was rejected was that which called for the total repeal of the Act. With the four referendum proposals admitted the referendum campaign began. The main opposition to the referendum came from the Church itself. The Church set up an anti-referendum committee called ‘Science and Life’ (Scienza e Vita) to campaign on its behalf. The anti-referendum campaign instead of calling for a ‘no’ vote called for voters to abstain so that the required quorum of 50 per cent plus 1 of voters would not be reached and the ballot would be declared invalid. This tactic was seen as a far more effective way of allowing the law under question to remain untouched but was also a subversion of the so-called deliberative democratic process. Thus, having used the legislative process to secure their aims, the Church and the conservative right now tried to sabotage the democratic system again because it didn’t serve their ends. In an alarming example of opportunism, Franceso Rutelli, one of the leaders of the left coalition, declared that he would abstain from the referendum vote on the assisted reproduction legislation, doing exactly what the Church wanted. In this regard Rutelli, who once put his name to a draft Bill on a liberal form of regulation of reproduction, can be seen to hold not a position of principle in any sense of the word, but rather one of opportunism. The anti-referendum campaign proved to be successful. The quorum was not reached with only 25.9 per cent of voters turning out.22 The battle for values in this case was won by default. The reason for the large abstention cannot be attributed simply to 21 See Legge Numero 352 of 1970 ‘Norme sui referendum previsti dalla Costituzione e sulla iniziativa legislativa del popolo’. See further Augusto Barbera and Andrea Morrone, La Repubblica dei referendum (Bologna, 2003), pp. 11–27. 22 See G. Luzi, ‘Procreazione, quorum fallìto’, La Repubblica, 14 June (2005): 2.

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the Church’s call for a boycott of the polls. The issue of assisted reproduction was not one that excited the enthusiasm of many voters. They saw it as an issue that affected a minority of the population. Moreover, the recent history of referendums in Italy has been marked by a large rate of abstention. Of the eighteen referendums held between 1997 and 2003, none have achieved a quorum.23 This might be attributed to fatigue on the part of the electorate in relation to the use of the referendum, for example in 2000 alone there were seven referendums.24 Notwithstanding the debate over the appropriateness of the referendum as a means of bringing about democratic change, the wider issue of the introduction of a law that erases autonomous reproductive decision-making has demonstrated the success of the Vatican’s strategy of engaging explicitly in political action. As a result the embryo, and with it a partisan view of reproductive technology, now occupies legal space. Embryo Protection and Constitutional Rights The draconian implications for couples who sought access to assisted reproductive services of the rigid implementation of the law can be seen clearly in the first case to test the provisions of the Act, which was heard in Catania in May 2004.25 In this case a couple, who were both healthy carriers of the genetic condition beta thalassaemia, requested approval of pre-implantation embryo selection to ensure that the child born as a result would not suffer from this condition. The judge ruled that this was not permissible under the Act, and noted that the fertilised eggs be implanted whether or not there is the risk that they may carry this disease. This ruling was based on Article 14 of the Act, which prohibits the creation of a number of embryos greater than that strictly required for one contemporaneous transfer. The number created should be no greater than three.26 23 See Barbera and Morrone, La Repubblica dei referendum, pp. 209–251. 24 Silvia Ballestra, in a provocative intervention, speaks of the unwillingness of the Italian electorate to engage with the vital issues raised by the referendum campaign. Instead, drained of curiosity or civic responsibility, in a polity that had become a mediocracy, they simply couldn’t be bothered to inform themselves of what exactly was at stake in this referendum. She observes (Contro le donne nei secoli dei secoli, pp. 30–31): Capire, dibattere, valutare le implicazioni tecniche, troppo faticoso. Toccava impratichirsi con termini quali citoplasma, blastociti, morula, ootidi, zigoti e gameti, avere una vaga idea di come funzionassero le cose, manegiare daccapo le sigle FIVET, PMA, IPS, DIPI, TRA, e quindi occoreva un glossario da tenere sottomano. Bisognava, insomma, studiare. Pazzesca pretesa per un paese dove l’informazione si fa un vanto della più sfrenata superficilità, dove persino di fronte alla lista della spesa, al conto della tintoria, qualunque caporedattore ti può dire: troppo difficile! La gente non capirebbe! 25 Tribunale di Catania, 1 sezione civile, 3 May 2004, www.diritto.it/sentenze/ magistratord/ trib_ct_40_19_03_04.html. See further P. Abbate, ‘Vittima di una legge crudele’, Il Manifesto, 27 May (2004): 13, and Fenton, ‘Catholic Doctrine Versus Women’s Rights’, pp. 100–104. 26 Article 14 also outlaws cryopreservation, the destruction of embryos, and embryo reduction. This, of course, leaves those embryos frozen and placed in storage prior to the

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The couple argued that the 2004 Act was incompatible with the rights guaranteed in Article 2 (the guarantee of inviolable human rights) and Article 32 (2) (the right not to be forced to submit to unwanted medical treatment) of the Constitution.27 The judge dismissed these claims, noting that the obligation to transfer three embryos into the womb simultaneously, (notwithstanding the fact that one or more may be carriers of the genetic condition suffered by the parents), did not constitute unconsented to medical treatment contrary to Article 32 (2) of the Constitution.28 Moreover the judge also dismissed the claim that the couple’s inviolable human rights were being interfered with, noting that there was no fundamental right to have a child of one’s desires. The judge argued that the child in this case is a potential child rather than an actually existing one. Thus, for the judge, the couple are interested not in the health of any child born as a result of the procedure, but in their wish to have the child of their desires, that is a healthy child, something that in his reading the Constitution does not guarantee.29 The judge here wilfully refuses to see that, by rigidly enforcing the three embryo transfer rule, there was the possibility that a child suffering from beta thalassaemia could be born as a result. The future child’s physical condition is disregarded in coming into force of the Act in a state of limbo. On the one hand, they cannot remain as such; on the other, they cannot be destroyed. The Italian National Bioethics Committee has come up with a typically Jesuitical solution to this dilemma, namely that such frozen embryos be put up for ‘adoption’. See further, Stefano Rodotà, ‘Se l’embrione e più importante di una donna’, La Repubblica, 21 November (2005): 1 and 18. 27 Article 2 states: The Republic recognizes and guarantees inviolable human rights, be it as an individual or in social groups expressing their personality, and it ensures the performance of the unalterable duty to political, economic, and social solidarity. Article 32 (2) states: Nobody may be forcefully submitted to medical treatment except as regulated by law. That law may in no case violate the limits imposed by respect for the human being. 28 On this point the judge noted: L’argomento è illogico sotto un duplice profilo. Per un verso, infatti, non può in alcun modo dirsi che l’obbligo di trasferimento degli embrioni nell’utero costituisca un “tratamento sanitario obbligatorio”, per il semplice fatto che l’aspirante madre è posta, dalle disposizioni normative di cui all’art. 6 della legge 40/2004, nelle condizioni di scegliere liberamente e consapevolmente se sottoporsi o no alle tecniche di procreazione medicalmente assistita… Per altro verso, quand’anche quello di cui si discute potesse essere ritenuto … un trattamento sanitario obbligatorio, poiché sarebbe previsto e disciplinato dalla legge, non violerebbe il 2 comma dell’art. 32 della Costituzione. (Tribunale di Catania, 1 sezione civile, 3 May 2004, www.diritto.it/sentenze/magistratord/trib_ct_40_19_03_ 04.html , p. 17). 29 Here the judge stated: Ed è certo che la Costituzione non prevede un diritto assoluto dei genitori di avere un figlio come lo desiderano. (Tribunale di Catania, 1 sezione civile, 3 May 2004, www. diritto.it/sentenze/magistratord/trib_ct_40_19_03_04.html , p. 16).

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the service of the protection of ‘Life’ itself in the abstract.30 If the couple were to continue with the implantation and subsequently discover that the future child would suffer from such a condition, the only option left open to them would be a therapeutic abortion.31 The process would then have to start over again with no guarantee that a similar outcome would not eventuate. As Fenton has rightly pointed out, in her discussion of this case: The theme running throughout the judgement can be identified as the need to give effect to a strict and literal interpretation of the new law, driven by a misconception that use of [Pre-Implantation Genetic Diagnosis] is disguised eugenics, because a child can never be better off by not being born. The religious influence, the misplaced criticism of the parents’ desire to have a ‘designer baby’, the disrespect for the rights of the mother and her subjugation to the rights of the foetus, illustrate that this judgement is the mirror image of the reasoning of the majority in Parliament who approved this law.32

A further challenge to the law was heard in Sardinia in July 2005. In this case, Article 13 of the Act was the subject of the challenge.33 In this case the Tribunale Civile of Cagliari referred the question of the constitutionality of Article 13 to the Constitutional Court (Corte Costituzionale) for review. Here, a couple, X.Y. and Z.J., who had been refused access to pre-implantation genetic diagnosis by their attending consultant in accordance with Article 13 of the 2004 Act, claimed that this refusal was contrary to Articles 2, 3 and 32 (1) of the Italian Constitution.34 X.Y. had, on a previous occasion, undergone IVF treatment and had discovered in the eleventh week of her pregnancy that the foetus was affected by beta thalassaemia. As a result she decided to undergo a pregnancy termination. On this occasion the couple wanted to make sure that the embryo was not affected by the condition before implantation. They refused to go ahead with the implantation before receiving a preimplantation genetic diagnosis. However, the doctor involved refused this service, as it was contrary to Article 13 of the 2004 Act.

30 See Valentini, La fecondazione proibita, pp. 139–158. 31 See further M. Fusco, ‘Il ‘caso’ Catania e la legge sulla procreazione assistita: Il referendum è davvero l’unica strada’, Diritto & Diritti, at www.diritto.it/articoli/dir_famiglia/ fusco1.html. 32 Fenton, ‘Catholic Doctrine Versus Women’s Rights’, pp. 103–104. 33 A copy of the decision can be found at www.lucacoscioni.it/?q=node/5796. 34 Article 3 provides as follows: All citizens have equal social status and are equal before the law, without regard to their sex, race language, religion, political opinions, and personal or social conditions. It is the duty of the republic to remove all economic and social obstacles that, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all workers in the political, economic, and social organization of the country. Article 32 (1) states: The republic protects individual health as a basic right and in the public interest; it provides free medical care to the poor.

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The judge in this case (unlike the judge in the Catania case), noted that the question of the constitutional legitimacy of the law was not manifestly without foundation. Moreover, in referring to decisions of the Constitutional Court in relation to abortion, the judge noted that the Constitutional Court had always declared in favour of the right to health of the woman when it came into conflict with the protection accorded to the foetus. In addition, the judge spoke of the right of a woman in such a case to receive the fullest information on the state of health of the embryo. Thus, in this case the general right to receive information in relation to medical procedures would apply to information obtained via pre-implantation genetic diagnosis in relation to the state of health of the embryo. The judge noted that this was the case in relation to determining the health of a foetus in utero. Therefore, if couples in the position of the applicants were to be refused access to pre-implantation genetic diagnosis then this would place them in a different position to couples who had a right to obtain access to tests to determine the state of the foetus in utero. This raised the question of whether this ban was in accord with the equality provisions in Article 3 of the Constitution, as well as the human rights provisions of Article 2 and the specific provisions in relation to the right to health in Article 32 (1). The judge referred the matter to the Constitutional Court for a consideration of the constitutionality of this aspect of the law. The matter was eventually heard by the Constitutional Court on 24 October 2006.35 The Court refused to allow lawyers for various interest groups (both pro-life groups and patient’s rights groups) to present submissions. After very little deliberation the Court declared inadmissible the question of the constitutional legitimacy of Article 13 on the same evening. The Court stated that detailed reasons for this decision would follow. The rationale for the decision was to come on 9 November 2006, and was an even greater affront to justice and to the idea of constitutional adjudication. The rationale was without rationale. In an alarming decision, the Court, without actually stating why they were doing so, noted that the reference of the lower court in Cagliari was not admissible. The decision merely stated that the Cagliari court’s assumption was contradictory in that the constitutionality of the impugned article could be deduced from other articles in the legislation and in the light of the interpretation of the entire law against the background of its stated intent. This highly elliptic, circular and problematic non-decision merely states, in effect, that ‘we cannot review the admissibility of this request because we think the law is constitutional, because of its stated aims.’ In other words, the law is intended to protect the embryo and, as such, any procedure that would harm the embryo is not legitimate. However, the constitutional court refused to actually measure the constitutional validity of article 35 Corte costituzionale, Ordinanza 369/2006, available at www.cortecostituzionale. it/ita/attivitacorte/pronunceemassime/pronunce/. For further analysis see Lara Trucco, ‘La Procreazione Medicalmente Assistita Al Vaglio Della Corte Costituzionale’, Consulta Online (2006) www.giurcost.org/studi/trucco.html; Simon Luca Morsiani, ‘A buon intenditor poche parole’, Forum di Quaderni Costituzionali (2006) www.forumcostituzionale.it/site/index2. php?option=com_content&task =view&id; and Alessandro Morelli, ‘Quando la Corte decide di non decidere. Mancato riorso all’illegitimità conseguenziale e selezione discrezionale dei casi (nota a margine dell’ord. N. 369 del 2006)’, Forum di Quaderni Costituzionali (2006) www.forumcostituzionale.it/site/index2.php?option =com_content&task=view&id.

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13 against the principles of equality and the right to health in the Constitution. It merely stated that the law itself was justified by its legitimating principles. In other words, the constitutional rights interfered with were irrelevant as far as the Constitutional Court was concerned. The law was constitution-proof. This is indeed a highly controversial and unacceptable outcome, a decision without a justification, not a critical analysis of the law but a rubber-stamping of an unconstitutional law by a Constitutional Court. Clearly unwilling to judge the constitutionality of the issue, the Court (in a decision that was not unanimous) stated that the law is legitimate because of its ideological premise.36 This is tantamount to saying that there is a higher natural law than the Constitution and this comes from God. This of course carries no constitutional weight. Nonetheless the Court, in deciding not to decide and by bypassing any form of what one could reasonably call constitutional adjudication, is doing exactly this. It is stating that constitutional principles such as equality or a right to health do not matter in this case because the embryo’s rights are paramount. The decision could have been scripted by the Attorney-General, who appeared at the hearing on 24 October 2006 to defend the law. On that occasion he noted outrageously and in flagrant disregard of constitutional principles: ‘the right to have a “healthy child” does not exist and has no legal basis, and as such, one cannot accord any relevance to the element regarding the psycho-physical balance of the woman.’37 As well as disregarding the very being of women this highly unconscionable piece of legal rhetoric displays a clear misogynist trait. The rhetoric follows the clinical fleshless style of the lower court judge in the earlier case in Catania in May 2004, who spoke of no such thing as a right to have a healthy child and, in so doing, displayed a total disregard for both the rights and desires of parents and the suffering of any child born as a result. According to such a view, parents should be happy to give birth to chronically ill children with reduced quality of life even when it is possible (albeit legally prohibited) to attempt to give birth to a healthy one. This betrays a mentality amongst legal elites that we must accept what nature intended and this must be imposed by the state if need be. In this case we are faced with the exception in which normal constitutional principles do not apply. The reasoning of the judge in the Catania decision, the Attorney-General, and the Constitutional Court all betray the same logic. We can

36 The Court noted (Corte costituzionale, Ordinanza 369/2006, www.cortecostituzionale. t/ita/ attivitacorte/pronunceemassime/pronunce/schedaDec, p. 4): pertanto, è evidente la contradizione in cui il Tribunale incorre nel sollevare una questione volta alla dichiarazione di illegittimità costituzionale di una specifica disposizione nella parte relativa ad una norma... che, secondo l’impostazione della stessa ordinanza di rimessione, sarebbe pero, desumibile anche da altri articoli della stessa legge … nonche dall’interpretazione dell’intero testo legislativo alla luce dei suoi criteri ispiratori. 37 ‘… tenuto conto che non essiste e non ha fondamento giuridico la pretesa di avere “un figlio sano” e che, pertanto, non può assumere alcuna rilevanza l’elemento attinente all’equilibrio psico-fisico della donna.’ (Cited in Eleonora Martini, ‘Consulta ‘infeconda’’, Il Manifesto, 25 October (2006), available at www.ilmanifesto.it/Quotidiano-archivio/25Ottobre-2006/art46.html.)

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suspend or forget the Constitution in this case. The physical and mental well-being of the woman is of no importance in a state in which the ‘criteri ispiratori’ include the protection of ‘Life’ in the abstract. The valuing of true abstract life over the mere life of women, who must sacrifice their health and their desires, is evident here. This is so because some men think it is right that one should not have a healthy child and dismiss with such callousness the psychological and physical well-being of women. This is a very strange outcome to say the least. This is an unacceptable state of affairs and is plainly an enormous buck-passing exercise on behalf of the Constitutional Court. The Court, in engaging in such an exercise, acted neither in the interests of the health of any future child born as a result of such an intervention, nor in the interests of the health of the woman. Nor indeed, did it act in the interests of justice, in its lamentable failure to carry out its duty to scrutinise the constitutionality of this law.38 The restrictive legal model in relation to assisted reproductive technology has seen the return of another social actor to Italy, the so-called rights tourist. The phenomenon of rights tourism is not new to Italy. We have only to think of abortion tourism from Italy to the United Kingdom for example in the period up to 1978. However the appellation of rights tourism banalises the more serious issue at stake in such a phenomenon, namely that it is only those with sufficient social and economic capital who can obtain such services overseas. Forced by a restrictive model in their home country they travel to a jurisdiction where such a service is provided. Reproductive tourism is an effect of global modernity where those who can afford to obtain such a service do so just as individuals have availed of foreign abortions and foreign divorces in the past. Religiosity, Embryo Protection, and the Pluralist State: Comparative Perspectives The patriarchal character of institutional bioethics in Italy, as exemplified by the extreme move of characterising the embryo as ‘one of us’, displays the ingrained misogynist nature of mainstream political discourse on human reproduction even today. It is, as Boccia and Zuffa have put it, a discourse that eclipses the mother.39 By valorising true abstract life, woman is relegated to the status of mere life, an intermediary figure used as a means of reproducing life in the service of the state. The way in which the embryo has been afforded legal recognition configures with Adriana Cavarero’s reading of the patriarchal societal framework in which a patriarchal misrecognition of genetics converts maternal power to the powerlessness of mere seed carrier.40 In this account female sovereignty over reproduction is denied. While there has been much progress in the legal position, there remains 38 See further Chiara Lalli, ‘Legge 40, articolo 13: le motivazioni della Corte Costituzionale sulla questione di legittimità’, available at www.bioetiche.blogspot.com/2006_ 11_01_bioetiche_archive.html. 39 Maria Luisa Boccia and Grazia Zuffa, L’eclissi della madre. Fecondazione artificiale, tecniche, fantasie e norme (Milan, 1998). 40 See my discussion of Cavarero in Chapter 3.

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within Italian culture a resistance to such a development.41 Despite the liberal legal reforms of the 1970s and 1980s there has remained within Italian society a strain of thinking that promotes a traditionalist and masculinist view of family relations. The phenomenon of embryo protection is not unique to Italy. In the European context, Germany for reasons not directly related to Church political manoeuvring has taken an almost identical stance to embryo protection.42 The 1990 German Embryo Protection Law (Embryonenschutzgesetz) prohibits embryo donation, egg donation, pre-implantation genetic diagnosis and the transfer of more than three embryos in any one cycle of IVF. Moreover the law prohibits the use of embryos in research. The German law came about as the result of an extraordinary political alliance between all parties across the political spectrum. In Germany the main element creating such a consensus on new reproductive technologies was the memory of Nazi eugenics. This spectre seemed to influence all political parties to a great extent, leading to the development of a national policy in which a strict limit was placed on embryo research. The Green Party and the Social Democrats were largely opposed to such research based on the fear of its use for eugenic purposes. The Christian Democrats were opposed to more liberal legislation on the additional ground of their belief in the sanctity of life of the embryo. As Nicole Richardt has observed: Throughout the embryological research debate … it was important that no condition was placed on human life. The traumatic experience of a positive population policy leading to mass sterilization programs in Nazi Germany … contributed to a strong notion that life is an end in itself … the specific framing of the debate in terms of continuity of life supported the demand for a comprehensive protection of the embryo and a prohibition of research in the German case. Through references to historical legacies of a positive population policy, embryological research could be framed in terms of opening Pandora’s box rather than making progress.43

If we look at culturally-Catholic countries’ attitudes to legislation on assisted human reproduction, what emerges is not a consensus based on shared ethical values but a wide dissensus. In Ireland, for example, the foetus is the subject of constitutional legal protection. In 1983 conservative pressure groups sought to introduce an amendment to the Constitution that disregarded any claim of Irish women to reproductive autonomy. The proposed amendment to the Constitution on the abortion issue guaranteed a right to life to the unborn. It read as follows:

41 For an analysis of the symbolic and material denigration of women in contemporary Italian political and popular culture see Ballestra, Contro le donne nei secoli dei secoli. 42 For the background to this legislation, see Christine Rothmayr and Celina Ramjoue, ‘Germany: ART policies as embryo protection’, in Ivar Bleiklie, Malcolm Goggin, and Christine Rothmayr (eds), Comparative Biomedical Policy: Governing Assisted Reproductive Technologies (London, 2004), pp. 174–191. 43 Nicole Richardt, ‘A Comparative Analysis of the Embryological Research Debate in Great Britain and Germany’, Social Politics: International Studies in Gender, State and Society, 10/1 (2003): 86–128, 110.

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the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, to vindicate that right.

The amendment was carried in a referendum in 1983. The amendment was entirely unnecessary in legal terms as abortion was already outlawed by statute in the form of sections 58 and 59 of the Offences Against the Person Act 1861. The politicians who acceded to the requests of these pressure groups to institute a referendum on the issue of the right to life of the unborn acted rather naively, in trying to placate a section of Irish society that appeared to wield more political power than it actually possessed. As the political scientist, Brian Girvin, has observed: the issue brought to light one of the major failings of the Irish political system: that pressure can be brought to bear on politicians during an election to make concessions to interest groups. [The pro-life pressure groups were] well placed to maximize this pressure as three elections took place between June 1981 and November 1982.44

In the case of Attorney-General v X and Others45 the Irish Supreme Court held that the constitutional prohibition on abortion contained in Article 40.3.3 of the Constitution was not absolute. The case concerned a fourteen-year-old pregnant rape victim, who had been prevented from travelling to England to obtain a pregnancy termination. A permanent injunction to this effect was granted by the High Court. The defendants appealed this decision to the Supreme Court. The Supreme Court held by a majority of four to one that Article 40.3.3 of the Constitution permitted pregnancy termination, when it was established as a matter of probability that there was a real and substantial risk to the life of the mother, including the threat of suicide as was present in this case, if the termination were not carried out. As a result of the case, the Government decided to hold referendums on the issues of the right to life of the unborn,46 the right to travel47 and the right of access to reproductive health information.48 The result of these referendums demonstrated a perceptible shift in societal thinking on these issues; 62.4 per cent of those who voted in the 44 Brian Girvin ‘Social Change and Moral Politics: The Irish Constitutional Referendum 1983’, Political Studies, 34 (1986): 61–81. 45 [1992] 1 IR 1. 46 The proposed amendment on this issue was worded as follows: It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction. 47 This proposal was worded as follows: Subsection 3 of this subsection [Article 40.3.3] shall not limit freedom to travel between the State and another state. 48 The proposed amendment on this issue was worded as follows: Subsection 3 of this section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

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referendum supported the right of the pregnant woman to travel and 59.9 per cent supported the right to obtain information on pregnancy termination services outside the jurisdiction. The proposed amendment regarding the right to life was defeated with 65.4 per cent voting against. In the wake of these referendums the Government was forced to act on the issue of access to reproductive health information. Legislation in the form of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 was enacted. This piece of legislation allows individuals to obtain information on pregnancy termination services outside the State within strict limits. However, these reinterpretations of the Constitution in a manner less damaging to women do not in reality lead to more justice for women. Thus, even though abortion is lawful per se, in practice it is not possible to obtain one in Ireland other than in the very limited circumstances where medical necessity requires a termination in order to save the mother’s life. This is due to the interposition of the professional ethics of the medical profession and the unwillingness of successive governments to introduce legislation allowing pregnancy termination. In 1998 the Irish Government set up an Inter-Departmental Working Group on Abortion to review the issue of abortion. Following consultation with a wide range of civil society and professional groups, the Working Group’s report was used as a basis for a Government Green Paper on abortion, published in September 1998. The Green Paper reflected the wide diversity of national opinion on the issue and offered seven different legislative models for further public consultation. These were: • • • • • • •

An absolute ban on the provision of abortion in the Constitution. An amendment of the existing constitutional provisions so as to restrict the application of the Supreme Court decision in Attorney-General v X. The retention of the existing law. The retention of the current law with the introduction of an Act of Parliament prohibiting abortion. An Act of Parliament to give effect to the Supreme Court decision in AttorneyGeneral v X. Reverting to the position as it was before the insertion of the constitutional amendment of 1983. Introduction of legislation that would widen the grounds on which abortion could be carried out legally.

After widespread consultation on these alternatives, an All-Party Parliamentary Committee published its report on the issue. The Committee was unable to agree on one approach to the issue and instead offered three alternatives: • • •

Leave the legal position unchanged. Introduce legislation to protect medical intervention to safeguard the life of the mother based on the Supreme Court decision in Attorney-General v X. A combination of a referendum on the issue and legislation to allow for intervention to save the life of the mother but exclude abortions based on the risk of suicide by the mother.

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The Government in October 2001 announced its intention to proceed with the third alternative, that is to hold a constitutional referendum on a proposed piece of legislation that would allow abortion only where a woman’s life was at risk from pregnancy but not where there was a risk of her committing suicide. In February 2002 a Bill was eventually introduced. This draft legislation would have reversed the decision of the Supreme Court in the X case and proposed even more draconian penal sanctions for those who attempted to have a pregnancy termination within the State. The Protection of Human Life in Pregnancy Bill 2002 proposed to reverse the decision of the Supreme Court in the X case by excluding the threat of self-destruction as a ground for abortion. Those who aided or abetted an abortion would, in this draft legislation, be sentenced to up to 12 years imprisonment. The only grounds for abortion would be where, in the reasonable opinion of a medical practitioner, it was necessary to prevent a real and substantial risk to the life of the woman. Thus, law expected women to pay the ultimate price, their life, if they were to evade the forced burden of pregnancy. The human life of the Human Life in Pregnancy Bill that appeared to be preferred was that of the foetus. Women, even in extreme cases, were called on to give up something more, to endure forced pregnancy in the name of some notion of idealised citizenship. Not only is male violence somehow condoned in this discourse, but the woman must have a life sentence imposed on her by being forced in the absence of legislation to the contrary to carry the pregnancy to term. A misogynist construction of women was also evident in the Government’s justifications for not allowing women to obtain abortions on the grounds of rape. This argument constructs woman as lying and deceitful. The Attorney-General who was involved in the drafting of the proposed legislation noted in media interviews that legislation on abortion that allowed women to obtain an abortion on the grounds of rape ‘might lead to a series of false accusations of rape’.49 This horrific construction of woman as liar and opportunist brings to the surface a not too deeply buried masculinist antipathy to female freedom in contemporary Ireland. In this view women are either victims of rape but should not be able to do anything about this or are alternatively deceitful schemers who would lie about having been raped in order to secure a pregnancy termination. When legislators are driven in their decision-making by such ludicrous stereotypes of women then it is hardly surprising that the issue of abortion has not yet been addressed in a mature manner by an Irish Government. In the vote on this flawed piece of potential legislation, the electorate, by a slim majority of 50.4 per cent to 49.6 per cent decided to reject the Government’s proposals. Indeed general disaffection with the manner in which the referendum was worded led to a turnout of only 43 per cent of the electorate. The least effective solution of those proffered was chosen to be put to the citizenry and they rightly rejected it. It would have changed nothing given that abortions cannot be performed in Ireland and would have narrowed theoretically the potential occasions in which an abortion might be legally performed. By including an attempt to give limited 49 Cited in Fintan O’Toole, ‘Cruel, bleak view of women put to the people’, The Irish Times, 5 March 2002, http://www.ireland.com/focus/abortion/comment/0305/comment2.htm.

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legislative effect to the X case decision and at the same time limiting that decision by excluding abortions on the ground of the risk of suicide, those who favoured a liberal model could not say yes to such a proposal in its entirety. On the other hand, anti-abortion campaigners could not say yes to both the exclusion of suicide as a ground for abortion and to the insertion in legislation of part of the X decision. The most likely outcome was that all shades of opinion would be forced to reject the amendment. It once again demonstrated governmental inability to provide a workable framework on this issue. Against this background it is surprising that on the issue of the governance of artificial reproductive technologies a more liberal policy route may be adopted. Currently in Ireland, in-vitro fertilisation is not outlawed though not the subject of legislation. When the Government appointed a committee to look into the feasibility of legislation in this area, it recommended that a regulatory body be established to oversee the provision of such services. In addition it recommended that the embryo in vitro not be accorded special legal protection and that services be made available to individuals without discrimination on the grounds of gender, marital status or sexual orientation.50 The Report is currently being considered by the Irish Parliament’s Health Select Committee. In the recent case of M.R. v T.R.51 the Irish High Court held that the embryo in vitro was not the subject of legal or constitutional protection. In this case an estranged couple contested the custody of three frozen embryos produced while they were undergoing IVF treatment together. The woman sought an order preventing the destruction of the frozen embryos and the man sought an order preventing the implantation of the embryos in his ex-wife’s womb on the grounds that he refused to consent to such a procedure. In the High Court the judge ruled that as the man did not give his consent for the implantation of frozen embryos in his ex-wife’s womb then they should be destroyed. Moreover he ruled that as a matter of law the destruction of the embryos did not constitute the destruction of unborn life in the meaning of the term in Article 40.3.3 of the Constitution. He noted that the term referred only to the embryo already in the womb. This of course does not stray very far from the existing Irish model of embryo and foetal protection. The existence of a culturally-Catholic context alone is not enough to lead to a restrictive policy on assisted reproductive technologies. If we look at the stance of, for example, Belgium and Spain, to policy on assisted reproductive technology this becomes clear. In Belgium, another country with a large Catholic population, the Government did not address the issue of assisted reproductive technologies in legislation until 2003. Until then the situation was marked by governmental nondecision.52 In this regard Belgium had a relatively similar liberal model to that of Italy throughout the 1990s. In the words of one study ‘everything [was] allowed, since

50 See Report of the Commission on Assisted Human Reproduction (Dublin, 2005). 51 [2006] IEHC 359. 52 Nathalie Schiffino and Frederic Varone, ‘Belgium: a bioethical paradise?’ in Ivar Bleiklie, Malcolm Goggin, and Christine Rothmayr (eds), Comparative Biomedical Policy: Governing Assisted Reproductive Technologies (London, 2004), pp. 21–41.

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nothing [was] strictly forbidden’.53 Belgium has been and continues to be one of the leading centres for the development of reproductive technology in Europe. In fact it has been observed that Belgium has the highest density of assisted reproductive centres in the world.54 Until legislation was finally introduced, the sector was governed by ministerial decrees that provided for a licensing and reporting framework. Historically the Belgian political system has been made up of Catholic, Socialist and Liberal cleavages. However due to the predominance of coalition governments in the post-war period the need to seek compromise on policy issues has been foremost. As Schiffino and Varone have observed: ‘the political system allows compromise to resolve the conflict among such a plural and segmented society as the Belgian one. It is by negotiating, and not by imposing the opinion of the majority, that the groups – and mainly the political parties – overcome their oppositions.’55 This has led the Social-Christian (Catholic) parties to avoid putting bioethical issues on the political agenda. If these parties were to adopt an extreme conservative position on such matters then they would lose their ability to work with more liberal coalition partners and if they adopted a more liberal compromise position on bioethics they would lose their core Catholic vote. As a result the most pragmatic political position to take on bioethical policy was to avoid it. This effectively led to a situation where issues such as IVF were not tackled in an explicit manner by coalition partnerships that included the Social-Christian parties as majority partners. This allowed the Social-Christian parties to keep the abortion issue off the legislative agenda until 1988. In that year two members of the Government coalition, one a Socialist deputy and the other a Liberal deputy, introduced a private member’s Bill to decriminalise abortion. This led to a constitutional crisis. The Flemish SocialChristian members of the Government coalition refused to vote on the Bill and the King of Belgium, Baudoin I, refused to sign the law on the grounds of his Catholic conscience after it was adopted by Parliament. The crisis was solved by the King abdicating on the grounds of temporary incapacity to govern. During this period the government unanimously signed the Bill and then both houses of Parliament declared that the King was fit to reign again. In 1999, for the first time since 1945, the Social Christians failed to enter a coalition government. The new coalition made up of Socialists, Liberals and Greens adopted a different attitude to bioethical policy. This led to the introduction in 2003 of legislation in relation to assisted reproductive technologies. Unlike the Italian case, the pressure placed on central government by the Church is not as strong and neither is the degree of religiosity. The existence of a strong Social Christian party for most of the post-war period impeded the political discussion of controversial bioethical issues but in the assisted reproductive technology sector did not impede development of a more liberal model of provision. The value pluralism that prevented the Social Christians from engaging in a more conservative governance style in relation to bioethical policies is also present within the medical profession that did not push for restrictive legislation in this field. Indeed, given Belgium’s leading position in 53 Schiffino and Varone, ‘Belgium: a bioethical paradise?’ p. 21. 54 Ibid., p. 22. 55 Ibid., p. 31.

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this sector worldwide, those in reproductive medicine were quite happy to have as little central regulation as possible. Unlike Italy, then, the grassroots Catholic culture did not impose itself on policy-making in relation to reproductive technology in Belgium. In Spain, another traditionally Catholic state, the approach varies widely with the one taken in Italy. Spain was one of the first European states to introduce legislation in this area. The legislation itself is not restrictive in nature. Like Italy there is a clear split between conservative Catholic thought on assisted reproductive technology and the more liberal stance taken by many in the medical profession. Unlike Italy the more liberal views of medical actors prevailed when legislation was introduced. The Spanish Law 35/1988 on Assisted Reproduction techniques (Ley sobre Tecnicas de Reproduccion Asistid) is aimed at the objective regulation of assisted reproductive technologies and does not include any provision that would give special legal protection to the embryo. In terms of access women are not required to be married or indeed in a stable relationship in order to be eligible for treatment.56 As Dubouchet and Kloti observe, the legislation’s objectives: are primarily of a medical nature … and there is … no reference to embryos and the protection due to them … One of the law’s goals is to ensure progress and the expansion of scientific research, which must in no way be hindered unless this is justified by reasonable and objective criteria and in order to prevent conflict with human rights or the dignity of the human being … It can therefore be summed up as ‘offering a framework without constraints’.57

Such a liberal framework was facilitated by a number of factors. Firstly, the medical community acted in a clear and cohesive manner in putting forward proposals for legislation. The medical sector was of the opinion that regulation of this field was necessary in the interests of scientific progress. Medical actors succeeded in putting their ideas across to the parliamentary committee set up to look into the matter in 1984. Indeed the President of the Committee, Marcelo Palacios was himself an expert in the area of bioethics and a medical doctor, and supported a liberal framework for this area. Secondly, Spain was in a period of transition after the Franco dictatorship and the ruling Socialist Party in this period was favourable to both liberal models of governance as a reaction to the repressive Catholic conservatism of the Franco period and to progressive scientific development. The model for the regulation of the assisted reproductive technology sector proffered by the medical community was in harmony with these objectives. Thirdly, Catholic opposition to the legislation was weak. The Church in Spain failed to initiate a coherent campaign against the new law and failed to gain support amongst members of the special parliamentary committee on the topic in the same way that the medical community did. In this regard, the

56 See for a detailed analysis Julien Dubouchet and Ulrich Kloti, ‘ART in Spain: Technocratic inheritance and modernist aspirations’, in Ivar Bleiklie, Malcolm Goggin, and Christine Rothmayr (eds), Comparative Biomedical Policy: Governing Assisted Reproductive Technologies (London, 2004), pp. 102–119. 57 Ibid., p. 105.

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position was the reverse of that in Italy. When legislation was being formulated in Italy the Church drove the design and implementation of legislation on its terms. Conclusion Behind the recent law on assisted reproduction lies an attempt to return to a traditionalist conception of Italian national identity based on the heteropatriarchal family formation. In such a case we are faced with what Roberta Dameno has termed a ‘manifesto law’, which has for its real objective the upholding of a traditional idea of the family rather than attempting in any way to facilitate access to assisted reproduction.58 In the period since the introduction of the legislation, rates of recourse to in-vitro fertilisation have dropped with couples being forced to go overseas for such services if they can afford it, or if they cannot, giving up such treatment.59 This experience demonstrates the continued currency of the concerns of feminist activist, writer, playwright and filmmaker Dacia Maraini, in relation to the tendency to become complacent about the durability of women’s rights within patriarchy. In a 1995 interview Maraini commented: Younger women take for granted the most important victories, without realizing that rights can easily be lost, because history is not a continuous progression, but can turn about, go back on itself. The path of history is not that of an arrow but that of a crooked line, and equality between men and women is not immutable.60

Maraini’s observations on the movement of history not as the forward movement of an arrow but as a crooked line allows us to visualise the way in which the position of women in Italian society has been the subject of both simultaneous progress and backward movement. The new law on assisted reproduction can be seen as a turning back on itself of previous legal reform, fuelled by the unresolved tensions between patriarchy and female self-determination. The introduction of such a restrictive law was facilitated by the existence of a relatively stable right-wing coalition that was willing to adopt the Church’s position on this issue in a wholesale manner for pragmatic political gain. The fact that opposition parties of the centre-left aligned with the Church’s position allowed for the easy passage of the legislation through both chambers of the Italian legislature. Voices in the medical profession and civil society proved unable to counter this overwhelming consensus on a restrictive legislative model even by using the initiative referendum and also through legal challenges. This displays an unwillingness on the part of political elites to engage in open deliberative consensus politics on issues of bioethical controversy, particularly where Roman Catholic ethical values are at 58 Roberta Dameno, ‘La legge sulla procreazione medicalmente assistita: “una legge manifesto’’’, in AA.VV., Un Appropriazione Indebita: L’uso del corpo della donna nella nuova legge sulla procreazione assistita (Milan, 2004). 59 See M. De Luca, ‘Fecondazione, crollo delle nascite’, La Repubblica, 22 May (2004): 14. 60 Dacia Maraini and Paola Gaglianone, Conversazione Con Dacia Maraini: Il Piacere Di Scrivere (Rome, 1995), p. 22.

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stake. This experience differs markedly from developments in this field in other culturally-Catholic European states such as Spain and Belgium where a more open and consensual model of bioethical policy-making has evolved.61 This would lead one to conclude that, despite high degrees of secularisation in Italian society, the levels of religiosity remain high and particularly influential when it comes to particular areas of bioethical policy. One could argue that a resurgent and more overtly politically active Church establishment is co-ordinating a mass backlash politics against what it sees as an unwelcome secularisation of Italian politics. In doing so they have tapped into and harnessed an already existing religiosity amongst a significant percentage of citizens.

61 As we have seen the case of Ireland may more closely parallel the Italian experience. However, Ireland seems to be currently in the process of taking a more liberal turn as regards potential policy development in the field of assisted reproductive technologies. However, Ireland lags behind Italy in relation to abortion provision in that it has not yet legislated in the area and abortion is not available in Irish hospitals. The seeming point of commonality between both states is the persistence of a strain of conservative Roman Catholic opinion that values the sanctity of unborn life over reproductive freedom.

Chapter 6

Reformulating Reproductive Citizenship To the extent that claimants are compelled to use a language of rights in pursuit of what they need or want, and to portray themselves as certain kinds of persons, when these may be alien to their self-understandings, it is evident that rights discourses are not ethically unambiguous or neutral. While emanating an emancipatory aura, their consequences both for those who use them and for those who are asked to recognize them are more contradictory.1 the point is not to reject but to reclaim legal artifacts such as rights as part of a practice of freedom in its multiple dimensions.2

Introduction The phenomenon of embryo protection in Italy has come about in part as a result of strong Church pressure being exerted on the so-called neutral state. Italian political elites bowed to such Church pressure in order to project to the public that they do indeed have values, albeit someone else’s. This phenomenon of pseudo religiosity on the part of the political elites is matched only by the level of pseudo representative politics that is simultaneously practised by them. Italy exemplifies a common malaise, that of the failure of politics in liberal democratic mode to bring about a truly representative democracy.3 The scene of contemporary party politics in Italy is marked by the attempt by all participants to compete for recognition by the two powers that count in society, the Church and the media.4 The political scene is filled with figures devoid of substance, seeking power without representation. This strange but not uncommon pseudo politics is reminiscent of what Jean Baudrillard has called the transpolitical. For Baudrillard, the transpolitical is the: ‘end of the scene of history, the end of the scene of the political, the end of the scene of the phantasm, the end of the scene of the body – it is the irruption of the obscene.’5 In this model politicians are: ‘compelled to simulate in a pathetic pantomime – 1 Jane Cowan, Marie Benedicte Dembour and Richard Wilson, ‘Introduction’, in Jane Cowan, Marie Benedicte Dembour and Richard Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge, 2001), pp. 1–26, p. 11. 2 Linda Zerilli, Feminism and the Abyss of Freedom (Chicago, 2005), p. 28. 3 See further on this, Paul Ginsborg, La democrazia che non c’è (Torino, 2006). 4 See further, Ginsborg, Silvio Berlusconi, and Edmondo Berselli, Post Italiani: Cronache Di Un Paese Provisorio (Milan, 2003). 5 Jean Baudrillard, ‘Figures of the Transpolitical’, in Jean Baudrillard, Revenge of the Crystal: Selected Writings on the Modern Object and its Destiny: 1968–1983 (London, 1999), pp. 163–198.

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pornographers of indifference whose official obscenity replicates and underscores the obscenity of the universe without illusion.’6 In this sense politics as performed by politicians has become a farce, a poor copy of reality. The transpolitical is marked by anomaly. In Italian politics we have the anomaly of politicians of all professed ideologies attempting continuously to make themselves seem pleasing to both the Church and the media, in order to woo the masses who have been programmed by the Church and the media to think that this is politics. Baudrillard reminds us that: ‘Anomaly has no critical incidence with the system. Rather, it forms the figure of a mutant.’7 Indeed, the mutant is a particularly appropriate description of those who pass for politicians in contemporary Italy and elsewhere. The embryo with rights is, of course, the mutant par excellence. The Italian case poses problems for the development of multi-ethical pluralist frameworks in the area of bioethics. To what extent is it possible to produce a framework in which diverse ways of seeing can be accommodated? The interest group politics of the Church and conservative political forces in Italy over the past twenty-five years has been successful in lobbying for a particular ideological model in relation to legislation on assisted human reproduction. In the rhetoric of such interest groups the embryo and the foetus are represented as viable proto-citizens deserving of legal protection and rights. This development reveals the continuing appeal to conservative and patriarchal models of gender and familial relations. The challenge posed by such a development is one that must be taken seriously if one is to develop pluralist models on matters of bioethical controversy. The Possibility of Bioethical Pluralism With the victory of the centre-left alliance led by Romano Prodi in the recent general election of April 2006, a new era as far as bioethical governance does not appear to have commenced in Italy. The situation seems to continue in the same way as previously, with bioethical matters not being addressed in a mature and objective manner. The ranks of the government alliance are made up of many members with Roman Catholic ethical values, as ideological division in the Italian party system has always been transcended by a common Catholic faith. The Prime Minister, Romano Prodi, was previously the leader of the Popular Party, a party with strong Catholic allegiances, and has expressed his opposition to stem cell research and has spoken of his support for the sanctity of life of the embryo. Indeed, one of Prodi’s first acts in relation to bioethics was to reprimand his Minister for Research who had removed the Italian veto from the vote in the European Union on the approval of stem cell research in 2006.8 The Minister for the Interior, Giuliano Amato, has supported the notion of embryo rights and has written of the need to accord certain limited rights

6 Ibid., p. 194. 7 Ibid., p. 164. 8 See further on this Francesco Alberti, ‘Ricerca sugli embrioni, Prodi richiama Mussi’, Corriere Della Sera, 1 June (2006): 10.

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to the embryo. His point of departure is that the embryo should be protected by law and any law on assisted reproduction should be based on such a view.9 It is indeed ironic that Amato was appointed chair of an ad hoc committee set up by Prodi to look at the area of bioethical governance.10 This ad hoc committee was set up to try to find common ground within the coalition government on issues of bioethical concern, given the diverse views ranging from those of theo-dems like Amato and Prodi to the more liberal views of other coalition partners such as Rifondazione Communista and Rosa nel Pugno. The ad hoc committee is a means by which to try and hammer out a common government view on bioethical issues. This, in itself, is hardly a sign that radical change on the issue of assisted reproduction is imminent. If the government is spilt internally on such issues, then the likelihood of a liberal model being introduced is slim. Further evidence of the new government’s lack of willingness to take this area seriously was its stalling on the appointment of the new members of the National Committee on Bioethics. The outgoing committee ended its term in June 2006 and was not replaced until December 2006. However the new government has not transformed the National Committee on Bioethics into a more radical body willing to take new approaches to the governance of issues of bioethical controversy. Within the governing coalition the names of several candidates to act as President of the Committee were circulated. The Government was reluctant to appoint a candidate who might appear ‘too secular’ as opposed to being too Catholic.11 Candidates of high-standing within the field of bioethics, such as Stefano Rodotà, Grazia Zuffa and Tamar Pitch, were seen as ‘too secular’ for the new theo-democratic left-wing alliance. This shows an inability to deal with the question of bioethical regulation in an objective and open manner. The Government views bioethics policy as the ultimate hot potato and has neither the courage nor the political will to act in a manner independent of the Church on these issues. One cannot expect reform to come from the organs of state as far as assisted reproduction is concerned. The appointment of an elderly male retired Constitutional Court justice, Francesco Paolo Casavola, as the new President of the National Bioethics Committee does not signal a radical transformation. The government has paid lip-service to the needs of women by appointing fourteen women to the thirty-five strong committee. Can this be anything more than tokenism from a government that supported the law on assisted reproduction and has made no move to repeal it?12 9 Giuliano Amato, ‘I dogmatici dell’embrione lo trattano come ‘muffa’, Corriere Della Sera, 11 April (2005), www.corriere.it/Primo_Piano/Documento/2005/04_Aprile/10/index. html. See also Amato, ‘I diritti dell’embrione’. 10 See further, Sara Bianchi, ‘La bioetica, nervo scoperto dell’Unione’, Il Sole 24 Ore, 13 June (2006), www.ilsole24ore.com/fc?cmd=anteprima&artId=790169&chId=30&artType =Artico. 11 See further Editorial, ‘Comitato di bioetica, le diable probablement’, Il Manifesto, 30 November (2006), available at http://www.lucacoscioni.it/node/7675. 12 See further on the composition of the new National Bioethics Committee, ‘Italia. Nominato nuovo Comitato nazionale di bioetica, Francesco Paolo Casavola il presidente’, Cellule Staminali: Notiziario Quattordicinale sulla clonazione terapeutica, 128/8 Dicembre (2006), www.staminali.aduc.it/php/ stampa.php?id=5766.

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However, matters coming from another direction, civil society, are increasingly causing the government embarrassment and are exposing the paucity of its position on bioethical matters. Within civil society a proliferation of groups continue to argue for a more sophisticated debate at the government level on bioethical issues.13 The campaign for the repeal of the law on assisted reproduction, whilst ultimately unsuccessful, revealed a large body of public opinion that wanted liberal reform in this area. More recently the issue of the right to die has been brought into the forefront of public debate by the campaign of Piergiorgio Welby whose campaign to die with dignity was at the forefront of public debate in the last quarter of 2006. Welby was in the end stage of muscular dystrophy and was paralysed from the neck down. He was intubated in order to receive artificial nutrition and hydration, as he was unable to eat or drink voluntarily. His only mode of communication was by means of speechsynthesiser software. In an extreme move to reflect his plight, Welby made a video appeal to the President of the Republic in September of 2006 asking him to grant him a right to die with dignity. In so doing, he cast an astute reflection on a life without real quality supported by technology. He described graphically that there was nothing ‘natural’ about a life maintained by an artificial respirator, intubated in the stomach and the throat to receive and drain fluids. What he sought now was an appropriate death.14 The President, while sympathising with Welby, could not of course grant his wish. Presidents often have the power to commute death sentences, however when the sentence is a life sentence then sovereigns are powerless to intervene. Welby then sought a court declaration whereby he would be allowed to have his artificial respiration, nutrition and hydration removed and be administered a lethal dose of painkiller to allow him to die with dignity. The Court sympathised with him but could give him no relief, noting that there was no legislative framework that would allow them to grant such a request.15 In the event, a medical practitioner did grant Welby’s wish and Welby died in December. The doctor is now being investigated in relation to breach of medical ethics and is also the subject of a criminal investigation. However, Welby’s travails did not end on his death. The Roman Catholic hierarchy intervened ordering that the nature of Welby’s death was such that he could not be accorded a Catholic burial. The Church in its battle in the name of a ‘culture of life’ is not only willing to uphold the rights of the unborn but to excommunicate the dead who in life acted autonomously to maintain their human dignity. The ability to empathise with mere humanity is something that is not necessary in fighting a war in the name of an abstract notion of life.16

13 An excellent example of what a pluralist bioethics could look like in the Italian context can be found in a recent book by one of the ‘too secular’ candidates passed over by the Government for the position of President of the National Bioethics Committee, Stefano Rodotà, La vita e le regole: Tra diritto e non diritto (Milan, 2006). The failure of the Government to appoint him to this position speaks volumes. 14 See further Piergiorgio Welby, Lasciatemi morire (Milan, 2006). 15 See Anonymous, ‘Il tribunale respinge il ricorso di Welby’, Corriere Della Sera, 19 December (2006), www.corriere.it/Primo-Piano/Cronache/2006/12_Dicembre/16/welby.html. 16 On the background to this case see Tom Kington, ‘Vatican divided as cardinal says patients should have right to die’, The Guardian, 23 January (2007): 14.

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European Human Rights and Gender Justice: Between Equality and Difference Given the failure of the Italian courts to intervene more robustly in the protection of reproductive rights in the interpretation of the new law on assisted reproduction, one might well ask to what extent it might be possible to secure a right to access assisted reproductive services at the level of the European Court of Human Rights. It has to be said given the Court’s track record on reproductive freedom that it is unlikely that a substantially different outcome would result. In its desire to refrain from interfering with individual state sovereignty when deciding on cases of human rights infractions the European Court of Human Rights in Strasbourg has tried to develop a model of decision-making which is at once objective and sensitive to member states’ sovereignty. Given the impossibility of achieving such goals simultaneously, the Court has arguably failed to be as effective an arbiter of human rights as it could be. This is no less true in cases of bioethical controversy that raise very clearly questions of cultural sensitivity and ethical divergence. In the context of cases concerning bioethics and human rights it is clear that the Court has utterly failed to accommodate the rights of women. An important series of cases in this regard are those involving Natalie Evans v the United Kingdom.17 In this case the issue of embryo custody arose. Natalie Evans wanted to proceed with the implantation of embryos that had been fertilised by her former partner Howard Johnston in the course of fertility treatment. Her former partner refused to consent to this.18 In the English High Court, in a case that also involved another woman in a similar situation,19 Mr. Justice Wall refused permission to have the embryos implanted in the applicants, based on the consent provisions of the Human Fertilisation and Embryology Act 1990.20 Under the provisions of the Act, in order to go ahead with implantation the consent of both parties is required. This then led to an order to destroy the embryos. Evans appealed the case to the Court of Appeal. The appeal was not successful. The question here is an emotive one. Should a woman be enabled to implant embryos fertilised by her former partner when the latter refuses to consent to the procedure? It would seem fair that the right to have a child also includes the right not to have a child. However in this instance Natalie Evans could no longer have a child that would be genetically related to her as she had undergone a procedure to remove her ovaries during treatment for ovarian cancer. This condition was discovered during the period in which Ms. Evans and her partner were undergoing fertility treatment. On the day that she discovered that 17 Evans v United Kingdom [2006] 1FCR 585 (European Court of Human Rights), and Evans v United Kingdom, Grand Chamber Judgment, 10 April 2007, available at http:// cmiskp.echr.coe.int. 18 Evans v Amicus Healthcare Ltd., Hadley v. Midland Fertility Services Ltd. [2003] EWHC 2161 (High Court); Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727 (25 June 2004) (Court of Appeal); Evans v United Kingdom [2006] 1FCR 585 (European Court of Human Rights). 19 Evans v Amicus Healthcare Ltd., Hadley v. Midland Fertility Services Ltd. [2003] EWHC 2161 (High Court). 20 Para. 6(3) of Schedule 3 of The Human Fertilisation and Embryology Act 1990.

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she was suffering from ovarian cancer, she was scheduled to have counselling for fertility treatment. The counselling session went ahead. At the clinic the couple was informed that, notwithstanding the cancer, it would still be possible within a short period of time to harvest eggs, fertilise them and have them stored before the surgery to remove the ovaries. In the space of twenty minutes after being told of her cancer Ms. Evans was expected to make a decision about the storage of the embryos. During the counselling session, Ms. Evans asked if she could freeze some of her unfertilised eggs as well as storing some fertilised eggs. She was told by the clinic nurse that this procedure was one that had not yet had a high rate of success and was not available at that clinic. According to Ms. Evans, Mr. Johnston then reassured her that there would be no need to freeze some eggs separately as he loved her and would be with her forever. He wanted to be the father of her child. Ms. Evans at the end of this exchange accepted Mr. Johnston’s reassurances and said that she loved him and trusted him. In the High Court Mr. Johnston contested Ms. Evans’ version of the exchange in the clinic, saying that he couldn’t remember giving her any specific reassurances at that time. Ms. Evans had, in effect, handed control of her reproductive future over to Mr. Johnston on the basis of a promise that he later contested and evidently never intended to keep. It is interesting that in the High Court the version of facts accepted was that of Mr. Johnston. This gave credence to a scenario in which the male narrative was seen by the judge as more reliable, notwithstanding the fact that it was Ms. Evans’ ability to reproduce a genetically related child that was at stake. Coupled with the fact that she had minutes earlier been told that she was suffering from ovarian cancer, one might think that, instead of this being just a promise, Ms. Evans was being persuaded in her fragile state to take a particular course of action. Ms. Evans version of events was treated similarly to her attempt during the counselling session to request that some of her eggs be frozen separately. When the relationship ended and the male partner no longer wanted to go ahead with the implantation, the court agreed with him. This would seem to give implicit support to a model of the family that is contingent on the word of the potential father. The legislation requires in most circumstances that both partners consent to obtaining treatment together. However, Lady Justice Arden in her decision in the Court of Appeal points to the possibility of interpreting this term in a wider sense, taking account of the reality of family arrangements today: The requirement for treatment together appears to reflect an expectation that, if two persons are jointly involved in the creation of an embryo and its transfer to the woman, both will be responsible for the upbringing of the child when born … this aim is not necessarily achieved simply by a requirement for two people to be involved together at that stage. It may one day be possible for a child to have only one genetic parent. Even now, there is no need for a child to be brought up by two persons and very often these days this does not happen. However, the appellant has not argued that the word “together” must be given a contemporary meaning to reflect this change in social conditions and accordingly this is not an argument on which it would be appropriate for me to express a view in this case.21 21 Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727 (25 June 2004) (Court of Appeal), p. 20.

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Here Lady Justice Arden is pointing to a possible omission in Evans’ legal argument. She is suggesting here but not elaborating further, as the argument was not made in the proceedings, that an argument that focused on the changing social model of the family could be used in relation to the meaning of treatment together under the Act. In effect what she seems to be hinting at is that through judicial interpretation of certain legislative terms, the legislation may reflect changing models of the family that depart from the traditional two parent heterosexual model. It is an argument for a more dynamic model of statutory interpretation, which modifies the heteropatriarachal model of the family on a situational basis. It could be seen as an example of a judicial engagement with existing static legal models in order to accommodate new ways of being together in society. Given that the appellant didn’t raise this particular argument, Lady Justice Arden is unable to express a view on this matter, but points to a possible argument that may be used in future cases. The Court of Appeal rejected the suggestion that there was an analogy between pregnant women and those who hope to have an embryo implanted. One was pregnant and the other was not. This, however, misses the point. By differentiating between the already pregnant woman and the woman who wishes to become pregnant, the law, as Drucilla Cornell would have it, perpetrates a ‘serious symbolic assault on a woman’s sense of self precisely because it thwarts the projection of bodily integration and places the woman’s body in the hands and imaginings of others who would deny her coherence by separating her womb from herself’.22 In the case of Natalie Evans a minimum condition for her individuation, having a child or being granted the opportunity to have a child, was denied her. This turned her body over to the imaginations of others, that is the potential father and the law that failed to allow her this opportunity. Lady Justice Arden, in her judgment, did allude to the problem of the appropriate comparator and the problems of discrimination inherent in this case. While engaging in an implicit criticism of the current regime, she was unable to find a way in which to use human rights principles as argued in the case to aid Ms. Evans. Lady Justice Arden pointed out: The analogous situation in this case is that of normal conception, that is of the creation of an embryo naturally as a result of normal sexual intercourse. On the basis of that analogy, is the correct perspective that of the (biological) mother or that of the (biological) father? If the relevant perspective is that of a woman who conceives naturally, there is no discrimination because the donation of sperm through sexual intercourse is equivalent to that of the transfer of the embryo to her, and the moment of conception is equivalent to that of implantation. No embryo has yet been transferred to Ms. Evans. However, the issue of discrimination in this case arises in the context of whether the genetic father can withdraw his consent. Accordingly, it seems to me that the focus should be on the father and the position of a fertile woman and an infertile woman in relation to the father. Seen from that perspective, there is discrimination between the position of Ms. Evans and that of a woman who conceives through normal sexual intercourse. The genetic father

22 Drucilla Cornell, ‘Dismembered selves and wandering wombs’, in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham, NC, 2002). p. 342.

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This approximates to a mode of interpreting rights in relation to reproduction that may take into account the unique position of women in this regard and acknowledges the discriminatory nature of existing law in this area. This reflects Drucilla Cornell’s argument to the effect that: ‘The right to bodily integrity must be differentially allotted to women to include their unique capacity to get pregnant as part of what it means to equivalently evaluate our sex as worthy of personhood.’24 This of course could be brought about by a review of the existing consent model in the Human Fertilisation and Embryology Act to the effect that consent for these purposes could not be withdrawn after the moment in which the sperm and the egg were combined in vitro. This would then make the consent model analogous to that of natural conception. However, given the lack of such a model of consent and given that under existing human rights principles there is no discrimination if such discrimination is objectively justifiable, Lady Justice Arden is forced to acknowledge: even if this is the correct analysis for the purpose of determining whether discrimination within Article 14 exists, there is no violation of Article 14 if the discrimination is objectively justifiable. In this case, in my judgment, the provision permitting withdrawal of the genetic father’s consent prior to transfer of the embryo to a woman would be so justified.25

Lady Justice Arden notes the discriminatory nature of such circumstances yet states that this is a form of discrimination that the law currently condones. This exposes the limits of human rights arguments in this area and forces us to think how by reading rights differently or framing rights claims in a different manner it may be possible to give voice to the unique person who seeks recognition of her choice. Natalie Evans, who wishes to give birth outside the terms of the reproductive contract, continues to reside within the space of masculine permission.26 Regulation in this area fails to recognise the uniqueness of the individuals involved and is also infused with a notion of the family as one in which two parents will look to the interests of the child. Evans appealed this decision to the House of Lords, which refused leave to appeal, whereupon she initiated an appeal to the European Court of Human rights. The Court handed down its decision in March 2006 and concluded by a majority of five to two that Ms. Evans’ rights had not been breached in this case.27 Human rights arguments based on Articles 2, 8 and 14 of the European Convention were unsuccessfully argued on behalf of the applicant. Ms. Evans argued a breach of her Article 8 right to 23 Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727, (25 June 2004) (Court of Appeal), p. 24. 24 Cornell, ‘Dismembered selves and wandering wombs’, p. 341. 25 Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727, (25 June 2004) (Court of Appeal), p. 24. 26 I would like to thank Julia Chryssostalis for her insights and incisive comments, which clarified greatly my ideas in relation to the question of patriarchal permission and the law. 27 Evans v United Kingdom [2006] 1FCR 585.

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privacy in that the consent provisions of the 1990 Act did not allow for exceptions or differential weighting of the interests of both gamete donors. Moreover she argued that the consent provision did not allow for a true comparison between the case of a woman refusing consent to implantation of embryos or to carry them to term and the case of a man withholding his consent to implantation, since overriding the man’s objection to implantation would entail no further medical interventions for him. In addition, she argued that the policy objectives behind the Act could just as well be attained if gamete providers were allowed to give an irrevocable consent at fertilisation or by allowing the male gamete provider’s withdrawal of consent to be overridden in exceptional circumstances. The Majority of the Court ruled that, insofar as Article 8 was concerned, there was no Europe wide consensus on the regulation of IVF and that the United Kingdom should be given a wide margin of appreciation to regulate the matter. They concluded that the UK had laid down a clear framework for the withdrawal of consent for both parties. However the two dissenting judges felt that in allowing such a wide margin of appreciation to the state in this case, the very essence of the applicant’s right to have a child was destroyed. This dissent raises again the deference given to states’ parties by the doctrine of the margin of appreciation that allows for disparity between states as to how they balance the rights protected in the Convention with other interests. This approach attempts to prevent the Court laying down a Europe wide set of values in relation to what the Council of Europe sees as matters of national sovereignty. However given that the Council of Europe is made up of the representatives of individual states parties it could be argued that the states are acting in their own respective national interests rather than in the interests of the individual rights of citizens. In Evans’ case it is obvious that the Majority continued to err on the side of timidity rather than engaging in a robust protection of individual rights. Evans also argued that the right to life protected in Article 2 included a qualified right for the embryo. This argument, used interestingly in support of a woman’s right to choose, is highly significant. It shows that legal recognition for an embryo might also be seen as recognising a woman’s control over birth. However, the Court dismissed this argument noting that it did not accord with its previous decision on the issue in the case of Vo v France.28 In the Vo case a woman who had gone for a routine check-up during her pregnancy was given an abortion due to a mix-up with another patient. She claimed that the right to life of her foetus was violated under Article 2 of the European Convention. The Court held that the margin of appreciation was wide in relation to when states decide when the right to life commenced. As France had in criminal legislation decided that the right to life only extended to people who were actually born then this policy should be respected. As a result Ms.Vo’s challenge failed. Here again the Court failed to act in an innovative way in the protection of individual women’s rights. In the arguments made by both Vo and Evans one can see a way to move beyond the problem of conflicting rights for women and foetus. If one were to agree that the right of a woman to give birth or decide not to do so were primary then one could rethink existing rights to prevent such gross violations of women’s rights. 28 [2004] 2 FCR 577.

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In commenting on the case of Vo v France, Katherine O’Donovan notes that, ironically, the woman’s interests were not upheld because of the court’s fear of ruling that the foetus in her womb was protected under Article 2. However she suggests that a way around this, which would value a woman’s right to reproduce, would be to frame the case in terms of Article 12 of the Convention, which deals with the right to marry and found a family. She argues in the following manner: Perhaps the right to found a family under Article 12 should have been the basis of the complaint, thus, making the mother’s autonomy and freedom to procreate the focus of legal reasoning. If the woman’s rights and interests limit those of the foetus, as acknowledged by the Court, why are her rights not central when she intends to have the child? … In a wanted pregnancy the foetus is protected by the mother through her body. Interference by a third party against the will of the mother is a violation of her bodily integrity. In failing to distinguish the position of the mother from that of third parties, and in its lack of clarity about the relationship of a mother with her wanted foetus, the Court does less than justice to Mrs. Vo. The relationship between a mother and her foetus does pose problems for legal systems, which look only to the individual and therefore cannot cope with ‘one but not one, but two’ … the Court seems unable to comprehend that the foetus is of her and is hers more than anyone’s … there was a third-party interference with Mrs Vo’s autonomy and bodily integrity, with her life plans, with her relationship with her unborn child. To say that this is a question of the child’s rights only and that it must be born alive in order to vindicate its rights, is inadequate.29

O’Donovan’s argument makes clear that accepted legal individualist thinking on the relation of the mother to the foetus in her womb occludes the rights of individual women. This limit in legal thinking is not helped by the Court’s refusal to think about rights in this context in any way other than a conflictual one. This limited thinking can also be seen in the Evans case in the way in which the Court addressed Ms. Evans’ claim that she had suffered discrimination in relation to her right to respect for her private and family life under Article 14 in comparison to a woman whose ovaries were intact and who would be able to either conceive naturally, or, if not, be able to produce sufficient eggs for repeated attempts at IVF. The Court rejected this argument, noting that such treatment was justified by the existing law in the United Kingdom. The refusal by the Court to accept Ms. Evans’ arguments in this case exposes the law’s inability to recognise the individual behind the mask of legal subjecthood. Both Vo and Evans are cases that exemplify the inability of the Strasbourg judicial machinery to properly address rights issues in a multi-ethical and multicultural context for fear of interfering with individual state sovereignty. This excuse for not intervening more robustly demonstrates the failure of the European regional human rights mechanism to uphold human rights of many individuals in the area of bioethics. A final appeal by Evans of this decision was heard by the Grand Chamber in 2007, which also concluded that her rights had not been breached, by a majority of 13 to 29 Katherine O’Donovan, ‘Taking A Neutral Stance on the Legal Protection of the Foetus’, Medical Law Review, 14 (2006): 115–123, pp. 121–122.

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4.30 Interestingly the four dissenting judges in a joint dissenting opinion held that Evans’ right to become a genetically related parent outweighed Johnston’s decision not to become a parent. They felt that the 1990 Act, ‘because of its absolute nature … [precluded] the balancing of competing interests in the particular case … the decision to uphold [Johnston’s] choice not to become a parent involves an absolute and final elimination of the applicant’s decision. Rendering empty or meaningless a decision of one of the two parties cannot be considered as balancing the interests.’31 The dissenting judges attacked the lazy way in which the margin of appreciation doctrine had been used by the majority to justify not intervening more robustly to achieve justice in this particular case. They noted: Certainly, States have a wide margin of appreciation when it comes to enacting legislation governing the use of IVF. However, that margin of appreciation should not prevent the Court from exercising its control, in particular in relation to the question whether a fair balance between all competing interests has been struck at the domestic level. The Court should not use the margin of appreciation approach as a merely pragmatic substitute for a thought-out approach to the problem of proper scope of review.32

In addition, the dissenting judges noted the shortcomings of the so-called gender neutral model of the legislation. In this case they argued that a woman’s specific needs and interests should be given due consideration on the basis of their difference from men. They noted that: ‘A woman is in a different situation as concerns the birth of a child … We see the circumstances of the applicant in this light not least because of the excessive physical and emotional burden and effects caused by her condition.’33 We can see here an argument that works on the existing legal framework to provide a more satisfactory form of gender justice. The dissenting judges understand that the law that assumes equality between women and men is not an effective means of recognising sexual difference. It also demonstrates that a re-reading of the law can provide a means of upholding sexual difference. This at least shows that it is possible, if not yet accepted, to draw the line differently in deciding in such cases. What we can see from both the dissenting opinion in Evans in the Grand Chamber and from the opinion of Lady Justice Arden in the Court of Appeal is that a judicial narrative exists that sees the shortcomings in the universal legal model of gender equality and its failure to practically protect and enforce the rights of individual women. One could argue that these interventions are arguments for a thinking of law with sexual difference as espoused by writers such as Cavarero and Irigaray.34 While the Italian legislation on assisted reproduction makes no secret of its patriarchal intent, more liberal legislation such as that in the United Kingdom, in a more subtle 30 Evans v United Kingdom, Grand Chamber Judgment, 10 April 2007, available at http:// cmiskp.echr.coe.int. See also Clare Dyer and Karen McVeigh, ‘Woman loses battle to use frozen embryos created with her ex-fiance’, The Guardian, 11April 2007, p. 10. 31 Evans v United Kingdom, Grand Chamber Judgment, 10 April 2007, available at http:// cmiskp.echr.coe.int, p. 22. 32 Ibid., p. 23. 33 Ibid., p. 23. 34 See my discussion of these writers in Chapter 3.

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form, occupies a position on the patriarchal spectrum. The two governance regimes, while on the surface divergent, share a fundamental characteristic in that they both evince (one explicitly, the other implicitly) a mode of governing reproduction that one could term one of patriarchal permission. The operation of the Human Fertilisation and Embryology Act 1990 has revealed a tension between the desire of individuals to control reproductive choice and the competing demands of regulation.35 What has emerged during the lifetime of the Act is a disjunction between, on the one hand, the abstract principles of consent and the welfare of the child,36 and, on the other, the interests of individual women. This raises questions about the ability of law to hear the voices of women who demand recognition of their individuality in cases within the sphere of reproductive freedom even within an ostensibly gender neutral legislative framework. It is precisely the failure of institutional equality that requires us to rethink the way in which gender justice can be achieved in and by law. Law, Sexual Difference and Reproductive Freedom The language of universal equality has to be reworked to engage with a new way of thinking sexual difference in law. This is not as difficult a struggle as one might think. The practical approaches provided by for example Lady Justice Arden in the Court of Appeal decision in Evans and the dissenting judges in the Grand Chamber decision in Evans provide frameworks that both underline the failure of sticking to a model of gender equality which does not bring such equality about in practice. They also sketch a means of incorporating sexual difference in law. What we must think towards is how the unique individual rather than the generic universal subject becomes the driver of judicial thinking on women’s rights. The law brings with it a simultaneous giving and taking away of freedom leaving women suspended in male symbolic space. This then leaves one in a bind. We cannot not want increased freedom, as Wendy Brown reminds us, but, at the same time, such freedom comes at the price of the continued regulation of female choice. Brown explains this paradox in the following terms: To the extent that rights consolidate the fiction of the sovereign individual generally, and of the naturalised identities of particular individuals, they consolidate that which the historically subordinated both need access to – sovereign individuality, which we cannot not want – and need to challenge insofar as the terms of that individuality are predicated on a humanism that routinely conceals its gendered, racial, and sexual norms. That which we cannot not want is also that which ensnares us in the terms of our domination.37

35 See further Derek Morgan and Robert Lee, Human Fertilisation and Embryology: Regulating the Reproductive Revolution (London, 2001), and Sally Sheldon, ‘Gender Equality and Reproductive Decision-Making’, Feminist Legal Studies, 12/3 (2004): 303–316. 36 See Para. 6(3) of Schedule 3 (re consent) and section 13(5) (re welfare of the future child) of The Human Fertilisation and Embryology Act 1990. 37 Wendy Brown, ‘Suffering the paradoxes of rights’, in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham, NC, 2002), p. 430.

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In saying this Brown is aware that the notion of rights has brought about recognition for many marginalised groups. However, the problem is that having obtained legal recognition the material position of such groups does not as a consequence improve. The task then is to attempt to re-imagine rights discourse in a manner that gives body to each unique individual, to re-imagine the way in which we conceive the political in order to undo the way in which the default setting of citizenship and rights discourse remains the disembodied male subject. By rewriting rights to talk neither of a universal subject nor the equally disembodied universal Other, but another, to move from the universal to the unique, we might approach a way of securing rights for women in practice as well as in theory. Thus, the re-symbolisation of existing notions like autonomy and privacy can play this role and improve the prospects for using rights claims as part of a wider liberation strategy. We can see in the judgment of Lady Justice Arden in Evans an implicit criticism of the current regime and an attempt to rethink the law in this area, which valorises woman as unique self. Arden’s judgment points to this differing interpretation of rights discourse, which as well as solving a legal problem brought about by new reproductive technologies actually responds to the unique narrative of a woman like Natalie Evans who appeals to the law to recognise her right to reproductive freedom. It reflects Adriana Cavarero’s definition of maternal power as ‘a right whose norms cannot be arbitrarily negotiated, or compared with other juridical situations’.38 Cavarero has pointed out the transformational power of thinking politics and law through the prism of uniqueness rather than universal individuality. She has observed that: individuality is … a repeatable, atomized, serial paradigm. Each individual, in and of himself, is as valid for one as he is for any other; he is equal because he is equivalent. Uniqueness, on the other hand, ends up rendering useless both the concept of repetition and the principle of generalization that nourishes the individualist theory. Uniqueness is an absolute difference, which … changes the very notion of politics.39

Instead of the ‘I’ of individualist rights discourse or the ‘we’ of many revolutionary strategies, Cavarero calls for a relational thinking of the ‘I’ with the ‘you’. This conception of the unique existent is the contrary of the what of universal humanism, the disembodied subject of rights. It is the who of the unique self possessed of her own speech, her own narrative, which she relates to another unique existent. Here what is at stake is a reinterpretation of political community as such. The notion of community for Cavarero is based on a theory of birth that sees each individual as unique though not born alone. Each individual, by the fact of being born, is linked by an originary bond with the mother: it is … crucial to trace again a feminine symbolic order in which maternity itself can be a space, not a “place.” Most of all it is necessary to outline a space from which we come and toward which we look with a daughter’s eyes, according to the order of reality prior 38 Cavarero, In Spite of Plato, pp. 79–80. 39 Cavarero, Relating Narratives, p. 89.

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Cavarero carves out a theory of relational subjectivity that moves from the traditional construction of the subject as a what, a societal construct, a universal disembodied (yet always somehow male) figure, to a notion of politics built on the who, the individual who relates and interacts with other individuals. This is an ‘embodied uniqueness of the existing being as he or she appears to the reciprocal sight of others. The who … has a face, a name, and a story.’41 In a recent work Cavarero turns her attention to voice as an indicator of uniqueness.42 Voice has been relegated, like the body, in the patriarchal symbolic. Voice is taken from women, just like birth, and in its place is imposed speech, the speech of the male. Women’s voices are forced to be still and only mouth that which the masculine order would have them say. Cavarero observes that women’s voice is silenced, just as her body is made invisible in the male symbolic order. Woman’s voice is prevented ‘access to the rational universality of a language reserved only for the male subject’.43 Just as it is necessary to retrieve the maternal body, it is also imperative that woman recover her own voice. In order for this to occur a new female symbolic space must be created. Cavarero names this space of relational subjectivity the absolute local. For her, the absolute local is a space that names a taking place of the political. For Cavarero the political is defined in Arendtian terms as the open space of interaction and communication between individuals. It is the ‘relational space which occurs with the event of this communication, and which simultaneously, disappears’.44 The absolute local refers not to what those who share this space are, but to who they are. This space then is the space of the who, the unique individual. It is a space that subsists outside the time of the political as understood by the male symbolic order. It refers to a deconstruction of belonging, the marginalisation of qualities and the depoliticisation of the what. This is not, for Cavarero, a utopian political space, but is one that can be found in political praxis. The example she refers to is that of sexual difference politics in Italy. In this example she sees an insistence on the relational matrix of the political, and on the desire for a symbolic existence that, in the practice of relations between women, every woman performs starting from herself. The absolute local of Cavarero could be seen as having much in common with Lia Cigarini’s notion of the above the law [sopra la legge].45 Cigarini, herself a lawyer, argues that women engage in their own relational practice of law. For Cigarini one 40 Cavarero, In Spite of Plato, p. 89. 41 Adriana Cavarero, ‘Who Engenders Politics?’ in Graziella Parati and Rebecca West (eds), Italian Feminist Theory and Practice: Equality and Sexual Difference (Madison, 2002), pp. 88–103, p. 99. 42 Adriana Cavarero, A più voci: Filosofia dell’espressione vocale (Milan, 2003). 43 Ibid., p. 225. 44 Ibid., p. 223. 45 It must be noted that Cigarini and Cavarero are not unknown to one another. Cigarini co-authored the critique of law and rights in the Milan Women’s Bookstore Collective’s Non credere di avere dei diritti with Cavarero. See my discussion of this work in Chapter 3.

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site in which such an exchange could take place is within the trial process itself.46 Cigarini felt paralysed by the contradiction between, on the one hand, being a female lawyer and wanting to carry out one’s profession well, and on the other hand, the sense of estrangement she felt from the pre-given dominant masculine mode of practicing law. In order to escape this paralysis she applied the praxis of sexual difference politics to law. This relational politics of law would manifest itself in the following way: aligning with other female lawyers in cases where there was a direct and actual conflict between a woman and a man such as in a divorce case … where clear questions of female desire are at stake; the desire of a woman who wants to defend her own interests against those of a man; her desire to be represented by another woman, a female lawyer, who she believes to be, because she is a woman, more competent than a man. The female lawyer, who consents to represent only women, demonstrates loyalty to her own sex (against an idea of the masculine profession). She is also loyal to female knowledge, collaborating with another female lawyer who she believes to be more prepared, with the objective of making more effective her own desire.47

This is the taking place of the female symbolic, a practice of sexual difference within yet outside the law. Cigarini terms this praxis as being above the law [Sopra la legge]. For Cigarini the above the law is a space of relation that interrupts the male legal symbolic. It is a relational concept of freedom that starts from an individual unique existent in relation with other unique existents. In this space of relation with another there is all the symbolic order necessary for women to become free in their relations with other women, with men and with the entire society.48 This praxis is a refusal to speak in the words given to women by law. It is to speak with one’s own voice in one’s own words.49 For Cavarero, like Cigarini, speech is not some abstract system that the male symbolic order imposes, but is politics. Speech here is that which refers to the material context of the said. It is the performance of embodied existence. This, however, is not an essentialist praxis, where each person speaks as the what of Woman. Rather, one speaks as unique existent, as a who. This speech is not just voice 46 See Lia Cigarini, ‘La pratica del processo’, in Lia Cigarini, La Politica Del Desiderio (Parma, 1995), pp. 118–126. 47 Ibid, p. 119. In the original this is phrased as follows: La consequente scelta, dunque, è stata quella di affidarci ad altre avvocate nei processi dove c’è un conflitto diretto e concreto tra una donna e un uomo come nelle cause matrimoniali. E dove possono esser in gioco precise desideri femminili: il desiderio di una donna che vuole difendere i propri interessi rispetto a quelli di un uomo; il suo desiderio di essere difesa da un’altra donna, avvocata, che ritiene, perchè donna, più competente di un uomo; l’avvocata che, accettando di difendere solo le donne, manifesta lealtà verso il proprio sesso (contro un’ idea della professione maschile) e, anche’ essa, fiducia nel sapere femminile, associandosi a un’altra avvocata che ritiene più preparata, allo scopo di rendere più efficace il proprio desiderio. 48 Lia Cigarini, ‘Sopra la legge’ in Cigarini, La Politica Del Desiderio, pp. 195–197. 49 See further Lia Cigarini, ‘Fonte e principi di un nuovo diritto’ in Cigarini, La Politica Del Desiderio, pp. 109–117.

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but is the embodied singularity, which the male metaphysical ear does not want to hear. It disrupts the male symbolic representation of woman as pure voice deprived of speech. In the patriarchal order the deprivation of the gaze between mother and daughter is accompanied by the deprivation of relational speech between mother and daughter. The re-appropriation of speech and gaze is the basis for a politics of subjective relationality, the absolute local, which subsists beyond the biopolitical traps of territory, nation state and identity. This amounts to a move from a masculine univocality, the politics of an imposed classical masculine voice, to a politics of relational plurivocality. This model conforms to a relational notion of rights. This praxis is a creative one, which is opposed to the fixing in place of the subject through the means of legislation. On the contrary, this is not a politics of clearly delineated, abstract, and always male subjects but of singularities without identity, without qualities, whos not whats, as Cavarero would have it. The writings of Cavarero and Cigarini help us to think what Linda Zerilli has referred to as a ‘freedom-centred feminism’. As Zerilli observes: A freedom-centred feminism needs not more rallying cries to carry on the cause of past generations – well, it can use this too – but disturbing examples of feminist practices of political freedom: disturbing – if we will only pause and let them disturb us – because they resist being incorporated into the social – and subject-centred frames that shape most stories of feminism, frames in which freedom as action has mostly disappeared.50

The ‘disturbing’ examples provided by, for example, Cavarero or the dissenting judges in the Grand Chamber decision in Evans, are disturbing precisely because of their refusal to be incorporated into a patriarchal biopolitical matrix. Such a means of seeing and interpreting our relation both to politics and to law, values the notion of a unique individual who is enabled in the taking of her own sovereign decision about her life. One of the female figures whom Cavarero resuscitates from the tomb of male philosophical discourse in her book In Spite of Plato: A Feminist Rewriting of Ancient Philosophy, is Penelope.51 Cavarero sees Penelope as a figure who creates a new symbolic space and time for women. The space which Penelope creates is ‘the space where a woman stays close to herself. Here women belong to themselves completely and absolutely. Their sense of belonging comes first and this makes other things possible.’52 This figure then becomes emblematic of the creation of a space for women where the masculine gaze and symbolic order cannot intrude. In Penelope, Cavarero sees the emblematic figure of another thought, which sees life and death as entwined, a materialist philosopher avant la lettre. The weaving room to which Penelope is consigned becomes an exemplary space for a politics of relational subjectivity. In this space, women:

50 Zerilli, Feminism and the Abyss of Freedom, p. 24. 51 See Cavarero, In Spite of Plato, pp. 1–30. 52 Ibid., p. 16.

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stay together quietly, exchanging looks and words rooted in the individual wholeness of their existence, now so evidently gendered in the feminine that this life shared in a common horizon allows every woman to recognize herself in another woman. They are weaving and laughing in their quiet abode.53

The figure who refuses to be fashioned by law’s speech but who fashions her own speech in relation with another, like Cavarero’s Penelope, seemingly changes nothing, but at the same time changes everything. ‘Life’ (as the male symbolic order would have us know it) has changed. This way of thinking our relation to law and rights in the context of reproductive freedom provides us with a rich counter-narration to the way in which ‘life’ as abstract value is currently framed in the Italian law on human reproduction. It is to such a model we must look as the basis of a challenge to the hegemonic way of thinking the construction of women within law and society. It is only in engaging in such a relational politics and bioethics that the reality of reproductive freedom may be achieved. Conclusion: The Accommodation of Difference in Law and Bioethics The particular debate around reproductive freedom and bioethics engages the wider question of how differing ethical value systems can be accommodated in contemporary pluralist states. The tension between stabilising national identity into one hegemonic construct or contrarily providing a political framework that accommodates difference has been addressed in an interesting and timely manner by the American political theorist, William Connolly. In his book Why I Am Not a Secularist, Connolly speaks of how the individual self and the wider community can engage in a form of dialogic politics that may facilitate a pluralistic working out of contentious social issues. Connolly refers to this form of politics as a micropolitics. This micropolitics for Connolly has the potential to both stabilise identities and also ‘usher a new identity or right into being’.54 Connolly argues that such new rights or identities cannot be created by a top down ‘molarpolitics of public officials’ but comes instead from a mobilisation of self-styling selves, ‘the molecular movements of micropolitics’.55 In this sense it bears similarities to Nikolas Rose’s ethopolitics to which I referred in the opening chapter. In Italy the mass feminist politics of the 1970s is an example of the power of such a micropolitics to bring about the recognition of difference. Currently we can see the play between the micropolitics of movements of individuals who are attempting to self-style their reproductive choices, and public officials, in the form of politicians and judges, who attempt to maintain the status quo and prevent the creation of this right. This opposition is an example of a different kind of politics, what I have referred to as a vitapolitics.56 This politics is based on rigid moral beliefs 53 54 55 56

Ibid., p. 30. William Connolly, Why I Am Not A Secularist (Minneapolis, 1999), p. 147. Ibid., p. 149. See my discussion of this concept in Chapter 1.

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and refuses to recognise contrary views. It blocks the dialogic political process and creates stasis. In discussing the concept of micropolitics, William Connolly uses the analogy of how an individual, in working out their position on controversial ethical issues, is confronted with differing sympathies and values. In coming to decide one is confronted with differing views, both outside and within oneself. He gives the example of the right to die and of an individual who believes that death must only come when either God or nature brings it.57 This person is shocked by movements who call for a right to doctor assisted death for those in severe pain as the result of a terminal illness. However, once the initial shock of this claim dissipates, the person begins to think of the suffering of terminally ill individuals in a world of high tech medical care. In such a case Connolly claims, ‘one part of your subjectivity now begins to work on other parts. In this case your concern for those who writhe in agony as they approach death may work on contestable assumptions about divinity or nature already burnt into your being.’58 Connolly highlights the uncertainties and tension within the self on the issue after such an individual starts to weigh up the many competing interests involved. Indeed having worked on the self: You continue to affirm … a teleological conception of nature in which the meaning of death is set, but now you acknowledge how this judgment may be more contestable than you had previously appreciated … What was heretofore nonnegotiable may now gradually become rethinkable. You now register more actively the importance of giving presumptive respect to the judgment of the sufferer in this domain, even when the cultivation of critical responsiveness to them disturbs your own conception of nature, death, or divinity.59

In other jurisdictions that we have looked at, such as Belgium and Spain, this collective working on the national self has led to co-operation in relation to the objective of introducing a consensual policy framework for assisted reproductive technology. However in Italy this will to dialogue has been lacking on the part of those who support, either for principled or pragmatic reasons, the Roman Catholic Church’s non-negotiable view on the issue. All we can conclude at this point is that a set of factors may one day coalesce that would be facilitative of liberal change, as has happened in the case of both Spain and Belgium. Connolly’s notion of micropolitics allows us to rethink bioethics. It allows us to focus on the actual desires and interests of the individual who claims a right in the biomedical context. Connolly terms this behaviour on the part of citizens an ethos of engagement with existing moral and social givens which may bring about unexpected consequences or transformations in the societal default thinking on bioethical issues. This process Connolly terms: ‘an ambiguous politics of becoming by which a new entity is propelled into being out of injury, energy and difference.’60 Micropolitical movements, such as for example the groups in Italy which continue to call for more liberal regulation of the assisted reproductive technology sector or 57 58 59 60

Connolly, Why I Am Not A Secularist, p. 146. Ibid., p. 146. Ibid., p. 147. Ibid., p. 160.

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those individuals who bring legal challenges to the existing law, ‘expose modes of suffering and injury heretofore located below the radar of public discourse. Sometimes the politics of becoming exposes how a list of basic rights that recently seemed complete harboured obscure and inadvertent exclusions inside the sweep of its formulations.’61 This process of micropolitics provokes us to rethink existing modes of addressing bioethical problems. Instead of allowing the eclipse of mere life by true or abstract life, the material body of the individual is foregrounded. The individual in this case takes responsibility for her own autonomous self and works on the political terrain to bring about real political change. This model provides for a real participative democratic politics rather than top down elite driven politics. In controlling one’s reproductive choice one enacts an ethos of engagement where real flesh and blood lives make the political difference.

61 Id.

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Index

abortion access to safe 36, 38 authorisation of 27–28 criminalisation of 15, 16, 35, 75 decriminalisation of 29–30, 32, 77 on grounds of rape 73, 75 illegal 28, 29, 32, 36, 38 in Ireland 72–77 legalisation of 2, 3, 10, 23, 27–33 limiting 46 rates of 36–37 reform 11–12 therapeutic 68 abortion act 1978 (Italy) 11, 27–28, 33, 51 attitudes towards 29–33 defence of 39–40 in practice 33–38 above the law, the (sopra la legge) 94–95 absolute local, the 94, 96 adultery 22, 63 affidamento 53 age 64 agency 5, 8 Alleanza Nationale 24 Amato, Giuliano 57, 61, 82–83 anni di piombo (years of lead) 22 anomaly 82 anti-abortion movement 8 see also pro-life groups anti-state movements 22 ART see assisted reproductive technologies (ART) assisted reproduction 25, 68–71 and the ‘Far West’ 51–52, 55 regulation of 2, 3, 11, 12–13, 39, 54–57, 59, 60–61, 79 assisted reproductive technologies (ART) 7, 12, 25, 54 see also donor insemination; IVF attitudes towards 76–80 Attorney-General v X and others 73, 74, 75, 76

autocoscienza 29, 53 autonomy 32, 34, 38, 51, 52, 64, 99 Baudrillard, Jean 81–82 Belgium 76–78 Benedict XVI, Pope 7 Berlusconi, Silvio 9, 24, 39, 60 bioethical governance, committee on 82–83 bioethical policies 2–3, 77–78 bioethics 4–10, 50–52, 57–58, 71, 79–80, 82–84 and difference 97–99 and human rights 85, 90 biological citizenship 4 biological determinism 7–8 biopolitical control 21 birth 44–45, 46, 89–90, 93–94 birth control 15, 16, 23 birth rate 16 Bolognesi, Marida 56–57 Bossi, Umberto 24 Busnelli Commission 56 Buttiglione, Rocco 39 Calamandrei, Piero 20 Casavola, Paolo 83 Catholicisation 6–7 Catholicism see Roman Catholicism Cavarero, Adriana 34, 43–47, 49, 71, 91, 93–94 Cé, Alessandro 57 centre-left, parties of the 61, 65, 79 choice 31, 45, 89, 92 campaign against 49–59 Christian Democratic Parties in Germany 72 in Italy (Democristiani) 9, 18, 19, 24, 25, 32 Church, the see Roman Catholic Church Cigarini, Lia 94–96 citizenship 1, 4, 5, 8, 93, 98 of embryo 6, 8–9

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virtual 5, 8–9 women’s 6, 8, 11, 16–17 Civil Code (Codice Civile) 1942 17, 20–21 Communist Party (Partito Communista Italiano) 24, 32 community 93–94 concepito 61–62 Connolly, William 97–98 conscientious objection 33–34, 35–37, 38 consent to treatment 63, 86–87 absence of 64, 67, 76, 85, 89 withdrawal of 59, 87–88 Constituent Assembly 17–18 Constitution, Irish 72–73 Constitution, Italian 15, 16, 21 on abortion 69 on autonomy 51, 64 on equality 17–18, 22, 23 on maternity 20, 62 on Roman Catholic Church 52, 60 Constitutional Court (Corte Costituzionale) 18, 22–23, 62, 65 on abortion 31–32, 33 on assisted reproduction law 68–71 Council of Europe 89 Court of Appeal (Corte di Cassazione) 19 Croce, Benedetto 19 cryopreservation 55, 57, 59, 60 outlawing of 66–67 D’Agostino, Francesco 50 D’Alema, Massimo 57 daughters 44, 93–94, 96 death 6, 84, 98 Degan Circular 55, 56 DEMAU (Demistificazione dell’autoritarismo) 30 Demeter, myth of 43–44 democracy 81 difference 91, 92–99 see also sexual difference theory/politics discrimination 37, 87–88, 90 divorce 23 doctors see medical profession donor insemination 25, 55, 56, 59, 60, 63, 65 Donum Vitae 7 doppia militanza (double militancy) 31

Earth, as cult object 5–6 Embryo Protection Law 1990 (German) 72 embryos adoption of 57, 67 citizenship of 5, 82 cryopreservation of 55, 57, 59, 60, 65, 66–67 implantation of 56, 85, 87, 89 interests of 50, 54 legal status of 60–64, 65, 66, 76 masculinity of 49 as ‘one of us’ 49–50 protection of 7, 55–56, 62, 66–67, 76, 78, 81 research on 54, 55, 56, 59, 64, 65 rights of 49, 50, 57, 62, 70, 72–77, 82–83, 89 selection of 64, 66–70 symbolism of 2, 6, 25 transfer of 56, 65, 66–68, 88 equality 29–30, 42 gender 17, 18, 19, 22, 23, 43, 47 ethopolitics 4–5, 64–66, 97 eugenics 72 European Convention on Human Rights 88–91 European Court of Human Rights 85, 88–90 Evangelium vitae 7 Evans case 85–89, 90–91, 93, 96 family, models of alternative 3, 12, 59–60 changing 86–87 heteropatriarchal 3, 11, 23–24, 25, 72, 79, 82 legal 11, 23, 24 Roman Catholic 7–8, 20, 49–50 traditional 3–4, 6, 18, 19–21, 49–50, 51, 88 family, the changing status of 12–13 disrupting unity of 22–23 ‘Far West’, the 51–52, 55 fascism 15–16, 19 fathers 43–44, 63, 86–88 feminism 46–47 and abortion legislation 28–33 Church’s war on 7–8

Index diffuse 52–53 freedom-centred 96 and the law 27–28, 30 liberal 27 political influence of 3–4, 5, 11, 28 radical 27, 29–30, 38, 40, 47 state 53–54 weakening of 12 Feminist Collective of Santacroce (Colletivo Femminista Santacroce) 30–31 foetuses see also embryos as cult object 5–6 interests of 32, 50 malformation of 35 mothers as hosts to 44, 45, 47, 49, 54 protection of 31–32 as proto-citizens 82 right to life of 72–73 Forza Italia 9 freedom, nature of 42–43 see also reproductive freedom gender equality 17, 18, 19, 22, 23, 43, 47, 91–92 gender neutrality 91, 92 gender relations 82 genetic diagnosis, pre-implantation 59, 62–63, 64, 65, 66–70 genetics, ignorance about 43–45 Germany 72 governments centre-left 60, 82–83 coalition 54, 57, 77, 79, 83 right-wing 59, 79 of Romano Prodi 82–83 Green Parties 57, 65, 72 heterologous/homologous reproduction 63 Human Fertilisation and Embryology Act 1990 85, 88, 92 human reproduction see reproduction human rights 4, 67, 69, 85–92 husbands, role of 17 immigrant communities 36 implantation 56, 85, 87, 89 in-vitro fertilisation see IVF individuality 92, 96, 99

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Inter-Departmental Working Group on Abortion 74 Ireland 72–77 Irigaray, Luce 41–43, 91 Italian Republic 15–16 Italian Socialist Party 9 IVF (in-vitro fertilisation) 54, 55, 56, 62, 76, 79 see also assisted reproduction judiciary 19, 20–21 Lateran Pacts 52, 60 law feminism and the 27–28, 30 inequality under 19, 40–41 masculinity of 1, 27, 34 lawyers, female 95 left, parties of the 24–25 legislation see also abortion act 1978 (Italy) on adultery 22, 23 fascist era 17, 18, 21, 22–23, 28–29 patriarchal 91–92 UK 85, 88, 92 ‘Life’ 5, 8, 60 abstract concept of 68, 71, 84, 97, 99 culture of 6, 10–11, 58, 84 ideogram of 5–6 mere 21, 44, 71, 99 sanctity of 6, 10, 12, 34, 58, 61, 72 true 44, 71, 99 Lonzi, Carla 29–30 Lorenzo, Francesco de 37 ‘manifesto laws’ 79 Maraini, Dacia 38–39, 79 marriage 17–18, 19, 63 married couples, access to ART 55, 56, 64 masculinity 47 of embryo/foetus 49 of law/legislators 1, 27, 34 of legal practice 95 of rights discourse 93 state 2 systemic 42–43 and women’s voices 94 maternity 20, 34 regulation of 45–46 as space 93–94

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Conceiving Life

traditional model of 49–50 matriarchy 49 matricide, symbolic 44, 45 media, politics and the 81–82 medical profession and access to abortion 27–28, 35–36, 37 and assisted reproduction 54, 59, 79 in Belgium 77–78 in Ireland 74 men, reproductive role of 16 micropolitics 97–99 Milan Women’s Bookstore Collective 40–41, 42–43 misogyny 71, 75 motherhood see maternity mothers 32, 49, 90 danger of suicide by 73, 74–75, 76 gaze of 44, 96 health of 33, 73 as hosts to foetuses 44, 45, 47, 49, 54 Movement for Women’s Liberation (Movimento di liberazione della donna) 28, 29, 35 National Bioethics Committee 50–51, 58, 67, 83, 84 National Health Service, Italian (Sistema Sanitario Nazionale) 55 nationalism 5, 15, 28–29, 79 nationhood 1 Nazi Germany 72 ninety day limit 33, 34–35 Northern League (Lega Nord) 24, 52, 57 obligations and rights 9 opposition parties 61, 79 padre padrone 17 Palacios, Marcelo 78 Papal Letter to Women 7 Parliamentary Social Affairs Committee 56 Pasolini, Pier Paolo 21–22 paternalism 1 patriarchy 1–2, 31–32, 34, 38, 43 and ART 54 cultural 10, 20 and female gaze 44, 96 persistence of 3–4, 11, 15, 24 in post-fascist period 16–17

and women’s rights 42, 49, 71–72 Penal Code 1930 28–29, 31–32 Penelope 96–97 personhood 8 Pierobon, Gigliola 29 Pitch, Tamar 83 Pivetti, Irene 51 Plato 43–44 pluralism 2–3, 17, 18, 20, 24–25, 58, 77 bioethical 82–84 plurivocality 96 politics 47, 81–82 see also sexual difference theory/politics reproductive 1, 10, 25 Popular Party 61 post-political phase 24 potestas patria 11 power masculine 17, 27, 40, 42 maternal 93 private sector 55, 56 pro-life groups 39, 51–52, 54, 73 Prodi, Romano 82–83 prohibition, regulated 13 Protection of Human Life in Pregnancy Bill 2002 (Ireland) 75 public sector 55 Radical Party 28, 33, 64, 65 rape, abortion on grounds of 73, 75 Ratzinger, Cardinal Joseph 7 referenda on abortion law 11–12, 23, 33 campaigns against 65–66 Irish 73–75 on the monarchy 15 on restrictive ART regulations 64–66 referendum abrogativo 64–65 referendum committee 65 religiosity 54, 59, 77, 80 of political elites 81–82 reproduction 2, 15, 63 see also assisted reproduction; assisted reproductive technologies (ART) reproductive choice see choice reproductive freedom 1, 12, 92–97 and abortion 10, 11, 28 defence of 39–40 restriction of 5, 33–34

Index women’s 1, 5, 10, 32, 34, 36 reproductive rights 13, 38, 40–47, 50–54, 90 campaign against 50–54 reproductive technologies see assisted reproductive technologies (ART) reproductive tourism 71 Rifondazione Communista 83 right, parties of the 36 right to die 84, 98 right to health information 73–74 right to life 72–73 right to life groups see pro-life groups right to privacy 88–89 right to travel 73–74 rights 4, 9, 43, 93 see also embryos, rights of; human rights; reproductive rights; women’s rights conflicts of 62, 90 constitutional 66–67 parental 70 positive 42–43 relational 96–97 tourism 71 Rivolta Femminile (Female Revolt) 29 Rocco, Alfredo 28–29 Rodotà, Stefano 83, 84 Roman Catholic Church see also Vatican ethical values of 79–80, 82 and morality 5, 51 opposition of 3, 33 political alliances of 11, 23, 57 political influence of 6–8, 9–10, 12–13, 25, 52, 59, 78–79, 81–82 pro-life views of 52 social teaching of 12–13, 19 in Spanish culture 78–79 Roman Catholicism and assisted reproduction technologies 76–80 cultural 2, 20, 76–78 of politicians 82 Rosa nel Pugno 83 Rose, Nikolas 4–5 RU-486 contragestive pill 36 Ruini, Cardinal Camillo 9–10 Rutelli, Francesco 61, 65 Santosuosso Commission 55–56

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‘Science and Life’ Committee 65 self-actualisation 4 self-determination, female 31, 32, 35, 38, 41 self-governance 4 self-knowledge 29, 53 sexual difference 91, 92–97 sexual difference theory/politics 30, 40–41, 43, 47, 53, 94, 95 sexuality, polymorphic 7–8 Social Christian (Catholic) parties 77 Social Democrats (German) 72 sons 44, 49 sovereignty embryo’s 59–80 state 85, 89, 90, 91 women’s 45, 46, 71 Spain 78–79 speech 94, 95–96, 97 stable relationships 63, 64 Storace, Francesco 36, 39 subjectivity 9 suicide 73, 74–75, 76 Tangentopoli scandals 9–10 theo-conservatives (teocons) 10, 11, 23–24, 25, 57, 60 theo-democrats (teodems) 10, 57, 61, 83 transpolitical, the 81–82 trial process 95 unborn, the see embryos; foetuses Unione delle donne italiane (Union of Italian Women) 31 uniqueness 93–94, 96 Varella, Francesco 57 Vatican 3 see also Roman Catholic Church political influence of 60–61, 66 Via Cherubini 31 victimhood 41 vitalism 4 vitapolitics 5–9, 12, 49–59, 97–98 Vo case 89–90 voice 94, 95–96 women bodily integrity of 87, 88, 90 citizenship of 8–9

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Conceiving Life as hosts to foetuses 44, 45, 47, 49, 54 inequality under law 19, 40–41 mere life of 71 as mothers 6, 7–9, 50 as reproducers 12, 15, 16, 59, 71–72 reproductive freedom of 1, 5, 10, 32, 34, 36 single 56, 59 socio-economic circumstances of 35–36

symbolic constructions of 49–50 as victims 41 well-being of 70, 71 women’s health 31–32, 33, 35, 62, 69, 73 women’s movement 11, 41–42, 52–53 see also feminism women’s rights 42, 49, 51, 71–72, 90, 93 Zuffa, Grazia 83