La diagnosi genetica preimpianto nella giurisprudenza italiana ed europea L’insufficienza del dialogo tra le Corti

This article examines the domestic and conventional case-law about access to preimplantation genetic diagnosis (PGD), focusing, in particular, on the Costa-Pavan judgment of the ECHR of 28 August 2012, and on the consequences it had on Italian legal system so far (Trib. Roma, I Sez. Civ., ord. 23.09.2013; Trib. Roma, I Sez. Civ., ord. 15.01.2014; Trib. Roma, I Sez. Civ., ord. 28.02.14, Trib. Milano, I Sez. Civ., ord. 4.3.2015). The analyzed cases allow to highlight some critical points, due both to the legal framework of L. n. 40/2004 and to the interactions between domestic and ECHR legal systems, especially as regards the relations among courts and their respective final judgments, as well as the highly debated issue of the direct applicability of the European Convention of Human Rights. Though acknowledging the fundamental contribution of domestic and supranational judges to a system of human rights protection that crosses national borders, the Author argues that the delicate issue of the access to PGD cannot be left only to judge-made law, but it is necessary a clear and preventive intervention by the representative legislator.