Court Practice on ART in Serbia: Posthumous Fertilisation

https://doi.org/10.63189/WMFG2892

In Serbia, two cases on posthumous fertilisation have occurred in 2022.  One is a case of a married couple named Marković. The second case is a case of a married couple named Prizrenac.^[1]

The first couple decided to undergo in vitro fertilisation to get a second child, since both had already entered the period of reduced reproductive capacity. Five embryos were created, two of which were returned to the uterus, where they did not survive, and three embryos were frozen. However, the husband died as a consequence of the Covid 2019 in January 2020. The clinic refused the wife's request to continue the in vitro procedure and refused the wife's request to transfer the embryos to another institution, as well. The Primary Court (Osnovni sud) in Belgrade (P. 462/22) denied the petition of the wife in which she asked to get the frozen embryos from the clinic to herself. The wife claimed that she has a right to get the embryos on the ground of the inheritance decision. Afterwards, the Higher Court in Belgrade has abolished the judgment of the Primary Court and return the case for retrial to the Primary Court.

The first-instance court - the Primary Court in Belgrade, found that the plaintiff's claim was completely unfounded on the ground of the Law on the Basis of Ownership and Property Relation and that the decision on inheritance has a declaratory and not a constitutive character. In this case, the legally binding decision is notary public decision according to which the heir is the wife of the deceased, and she is to be heir to the rights and obligations of the deceased from the given consents in the ART procedure.^[2] The notary public refers to the last will of the deceased. The court stated that on the basis of this decision the wife did not inherit the right of ownership of the embryos in question, but rather the rights and obligations arising from the inheritance documents. It does not appear from the content of the agreements that the plaintiff's late husband at any time agreed that the plaintiff could independently use and dispose of the embryos in any way, as well as to transfer the embryos from one institution to another. Thus, any disposition, use, and even transfer of embryos from one institution to another, would be contrary to the will of her husband and contrary to Art. 49 par. 1 item 1 Law on Biomedically Assisted Fertilisation 2017 which prohibits the donation and use of embryos without the written consent of the donor. Thus, the inheritance decision cannot be used instead of her husband's consent. In addition, from the aforementioned agreement for the procedure of embryos freezing, follows that the plaintiff and her husband agreed and decided that in the process of divorce, an accident or other unforeseen circumstances, the embryos will be destroyed in a standard procedure.

The Higher Court is of the opinion that the conclusion of the first instance court that the wife has no right to request the transfer of embryos from one institution to another for ART is not clear enough. In addition, the Higher Court is of the opinion that the fact the wife and her husband agreed and decided that in the process of divorce, accident or other unforeseen circumstances, the embryos will be destroyed in the standard procedure, is of no relevance. The determination of the legal status of the embryo in the event of the death of one of the potential parents, in the opinion of this court, should be an essential element of the contract on the provision of biomedical assistance, as one specific provision of consent. Thus, the death as a reason for the destruction of the embryo had to be specifically contracted.

In its decision, the Higher Court exspressed the opinion that an embryo is the result of the voluntary genetic contribution of two persons, and legally it can be viewed as a thing in the sense of civil law, over which a man and a woman have the right of a kind of co-ownership. However, considering that the embryo represents a sui generis thing, i.e. a thing of a special kind, it cannot be completely subsumed under the rules that regulate legal status of things in civil law. In this regard, it cannot be accepted as a correct conclusion of the court of first instance that in this case the conditions prescribed by Art. 37 of the Law on the Basis of Ownership and Property Relations should be applied. Conclusion of the court of first instance cannot be accepted as a correct because the embryos cannot be in the actual possession of the potential parents or third parties, but only in the Laboratory for cryo procedure.

The High Court correctly concluded that this case is not about embryo donation, so the provision of Art. 49/1 Law on Biomedically Assisted Fertilisation does not apply here.

In a procedure on the appeal on primary court’s new decision, the Higher Court in Belgrade has changed the decission of the primary court (P. no 4307/23) and made a decision in which adopts claim of the palintiff and oblige the defendant, the hospital (Jevremova Hospital) to hand over two frozen  embryos to plaintiff in a way to enable the center (Woman Health and IVF Center North Cyprus) in Cyprus to take over the embryos from the hospital in Belgrade and transfer them to the center in Cyprus in order to keep them there. Based on the fact that the plaintiff was declared the heir to the rights and obligations from the agreements by a final inheritance decision of the notary public, she has acquired the right to independently make decisions related to disputed embryos, so she has the right according to Article 52/5 of the Law onBiomedically Assisted Fertilisation to request a transfer for justified reasons to another institution registered for the ART procedure.

In its explanation, the court is of the opinion the occurrence of the death of one of the potential parents cannot be seen as an unfortunate event or other unforeseen circumstance. The court is of the opinion that death as a reason for the destruction of the embryo had to be specifically contracted, but in this particular case it was not a case.

Besides that, there is a question concerning the legal status of the will expressed in the agreements. It is questionable, whether will constitutes some kind of right and is it heritable or not. It has to be stressed that rights and obligations which are heritable, are only rights and obligations which have property nature. On the contrary, expressed will is of personal nature. As a matter of fact, consent is rather an expressed will, and not actually a right. In addition, it is also important to stress that in inheritance law there is a rule that things and rights can be inherited. It is questionable, does an embryo fall into these categories, due to its potential to become a human being. This potential of the embryo to become a human being brings into doubt legal status of an embryo as a thing in law. In addition, it has to be noticed that the inheritance rule is that legacy consists of all inheritable rights that belonged to the testator at the time of death (Art. 1/2 Law on Inheritance). Thus, if will and embryo are not inheritable, they actually do not consist legacy of the testator. The public notary and the Higher Court made their decision in favour of the plaintiff, with the argument that the wife becomes heir and inherited the rights expressed in the agreements by the late husband. Bearing in mind inheritance law and its rules, it seems the argument on which the Higher Court based its decision is not valid.

^[1] On this case in: Ivana Barać, “Posthumous Reproduction: Life after Death”, Pravni zapisi, XIV, no. 2 (2023), pp. 438-475.

^[2] Notary Public decision UPP: 615-2021.

Consents: IVF/ISCI-ET Consent for the procedure LP OBR-1087 dated 17.11.2020, Consent for embryo transfer LP OBR--1088 dated 20.11.2020, Certificates for the embryo freezing procedure LP OBR-1158 dated 22.11.2020.