Italians went to the polls on June 12 and 13 to vote in a national referendum on ‘assisted procreation’; that is, procedures that permit people with reproductive problems, including those who carry genetic illnesses, to conceive and bear children.
The subject of the referendum was Law 40/2004, which was passed by the Berlusconi Government on 19 February last year. Law 40/2004 contains a series of provisions that make possible the unprecedented and detailed intervention of the State in this most private of domains.
Specifically, the law prohibits the donation of sperm and reproductive cells to couples unable to conceive, the freezing of embryos, the use of stem cells for research purposes and the use of ‘pre-implant analysis’, which can determine whether the embryo about to be implanted is healthy or not. It also restricts the number of embryos that can be implanted in the prospective mother’s uterus to just three per course of treatment, and dictates that all three embryos be implanted at the same time.
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Previously, after undergoing the complex series of tests, hormonal stimulation and other interventions that initiate a course of treatment, the decision as to whether to continue having embryos implanted until conception occurred was a matter for the patient, her partner and her doctor. Now, each time a woman wants to have another three embryos implanted, she must repeat the whole procedure.
The new law is based on the concept of ‘co-involvement’, a term that accords equal status to the rights of the prospective mother, the embryo she carries, and the prospective father. Supporters of the law frequently refer to embryos as ‘human beings’.
They also claim that law 40/2004 protects the health of women ‘and their children’ by ensuring that medical interventions to aid conception will be ‘gradual and non-invasive’. They believe it necessary for the State to prevent the ‘over-production’ of embryos, their selection and freezing.
Their main argument, however, is that ‘every child has the right to be born and to grow harmoniously with parents whom he knows to be his to know his own biological origins’.
Opponents of Law 40/2004 point out that infertility is a growing problem, and that the freedom of couples to take advantage of new medical procedures in order to establish families should be protected. Donating reproductive cells to infertile couples is a procedure that by now is available in many countries and was available in Italy until 2004. There is already evidence that some Italian couples are now seeking remedies abroad, via a kind of ‘tourism’ for reproductive purposes.
Far from ‘protecting the health of women’, opponents believe the restriction on the number of embryos that can be implanted will have the opposite effect, driving women whose first implantation is unsuccessful to seek potentially dangerous repetitions of the entire diagnostic and surgical procedure in order to achieve a successful outcome.
But they are especially critical of the fact that the ‘rights’ attributed to a group of cells of uncertain future have been given equal status as the woman who carries them. What will be the implications of attributing a kind of legislative identity to single embryos? Will it lead to new restrictions on Italian women’s hard-won access to abortion?
Unlike Australia, where, on the relatively few occasions on which referenda have been held, it has been to test the people’s receptiveness to a law yet to be passed, Italian governments make the laws first, and, in cases of continuing controversy, go to the people later.
When the Constitutional Court can be persuaded of the need, a popular referendum is held to allow the citizens the opportunity to make changes to the law. Voters can register their approval or disapproval of the law, or their formal abstention. Voting is not compulsory.
In the lead-up to the referendum on Law 40/2004 there was a notable absence of any kind of national publicity program to ensure that interested citizens fully understood the issues of the referendum, and had opportunities to debate the relative merit of different viewpoints. Several of the minor parties were critical of the Berlusconi-owned mass media outlets for not devoting enough media time and space to the issue.
The Vatican’s ‘behind-the-scenes’ role in the debate was also interesting. The Pope chose not to make an official announcement on the referendum but one of his senior representatives, Cardinal Camillo Ruini, head of Italy’s Episcopal Conference, made public statements that were widely believed to be on behalf of the Vatican. He invited Italians to vote ‘No’, but gave the faithful an ‘out’ by suggesting that a further option was to boycott the referendum altogether. An official campaign supporting mass abstention quickly developed.
Disappointingly, this invitation to abstain was in effect reinforced by the Marguerites, the loose coalition of various minority parties on the left of the political spectrum. Francesco Rutelli, the (Catholic) president of the coalition, announced that he intended to abstain, thus creating confusion in the minds of intending voters looking for strong and progressive leadership on the issue.
To a foreign observer, this encouragement from one of the country’s major political leaders to reject an important instrument of the Italian democracy (rather than encouraging the citizens to attend the polls, then vote according to their conscience), was, at best, a weak effort to avoid confrontation with the Vatican, and at worst, an irresponsible act.
The polls closed on Monday 13 June (a working day). The referendum failed. Despite an overwhelming ‘Yes’ vote among those who did vote, the quota of 50.1 per cent needed to validate the referendum was not achieved: less than 35 per cent of the population was prepared to go to the polls.
Whichever pre-referendum debates did occur (and they were few), I did not hear anyone disagree that Law 40 would have immense repercussions especially for women. So, why didn’t they speak out about it? I know several intelligent and well-informed women who are now fearful for what lies ahead, but these same women were unable to identify any national movement of women capable of mobilising support for the defeat of a law that imposes severe restrictions on women’s choices, and on those of their partners.
The failure of the Italian Referendum on reproductive technology is a salutary lesson on the importance of ‘eternal vigilance’ where women’s indeed humans’ rights are concerned. My Italian women friends are acutely aware of the fact that choices that just a few months ago were available to them have now been extinguished. And that, as yet, most of their sisters don’t seem to have noticed. Let’s not allow this to happen to Australian women.