The “Gift of the Body to Science” After Law no. 10/2020: Towards a Legal Framework for Brain Tissue Research

Abstract

This essay examines Italian Law No. 10/2020 on the post-mortem disposition of the human body and tissues for study, training and scientific research, five years after its enactment, from the standpoint of biomedical research on brain tissues. The first part traces the genealogy of the law, from the nineteenth-century dirigiste model based on the appropriation of unclaimed bodies to the contemporary paradigm of informed consent, and highlights its structural shortcomings: a rigid, quasi-proprietary conception of individual autonomy, modelled on the scheme of advance directives, and a scope of application confined to anatomical training, which neglects the needs of neuroscientific research. With specific reference to brain tissues, it is argued that the clinical setting and shared care planning provide the most favourable ground for the formation of an informed willingness to donate. The second part identifies, within the framework defined by European comparative law, EU and Council of Europe law, and Law No. 10/2020 itself, two courses of action de iure condito: “freeing” for research the biological materials overlooked by the law, through regional legislation grounded in Articles 9 and 32 of the Italian Constitution, Article 22 of the Oviedo Convention and Article 14 of Recommendation CM/Rec(2016)6; and the development, through clinical-scientific self-regulation, of collaboration agreements between reference centres and research institutions and of informed consent protocols specifically designed to promote brain tissue donation.