Post-Mortem Procreation: Between Legislative Shortcomings and Jurisprudential Substitution

Abstract

The essay analyzes post-mortem procreation in Italy, highlighting the deep conflict between the prohibitions of Law no. 40/2004 and the protection of procreative self-determination. Through the study of jurisprudential evolution, the text critically evaluates the prohibition based on the requirement of both partners being alive at the same time, shedding light on how praetorian practice distinguishes the lawful implantation of cryopreserved embryos from the controversial fertilization of gametes after death. Guided by the case law of the Supreme Court of Cassation, the investigation stresses the centrality of informed consent as the foundation of the status filiationis. Finally, the paper proposes a comparison with the Spanish regulatory model to overcome the current aporias of the domestic legal system.