The inertia of the Italian legislator and judicial remedies. The case of Medically Assisted Reproduction.

The issue of legislative omission arises as a problem linked to the need for legal certainty and the consequent observance of the normative precept.

The response to the legislator’s inertia implies an institutional conception from which it is possible to organize the individual powers, giving a characterization to the form of State and government.

One of the most striking examples is Law 40/2004, through which the Italian legislature has regulated medically assisted procreation. The complexity of the matter involving ethical and cultural principles as well as scientific/technological progress has caused many difficulties both at the time of the request for specific protection and at the time of its application. The law turns out to be dated, unclear and with great gaps.

The impossibility of forcing the political body to adopt an active behaviour by issuing a new law, has led to the intervention of the jurisdictional power through judgements that have literally rewritten this law.