Just children. Giudizi e pregiudizi nella tutela dei nati da PMA

This short article deals with the issue of the protection of those born by recourse to medically assisted procreation. After describing the provisions to which Law 40/2004 entrusted the protection of those born by artificial insemination and the rationale behind it, the impact on them of the removal of the absolute ban on heterologous fertilisation decided by the Constitutional Court in its sentence 162 of 2014 is analysed. It is from the breach thus opened that the problem of those born abroad by procreative techniques still prohibited in Italy acquires the breadth and urgency that now characterise it. The protection accorded to these children presents a graduation that appears independent of the appreciation of their “best interest” and that derives from the consideration of the rules that sanction the behaviour of the adult world and decree their guilt. The correct use of the instrument of analogia legis highlights the discrimination of which these ‘children’ are victims and also reveals the ‘punitive spirit’ that animates the decisions that sacrifice their status in the name of the interest of the community in prosecuting those who have transgressed its rules.