Assisted reproductive technologies (ART) raise a number of controversial issues, which certain state legislations are making serious efforts to give a proper answer to. Conception with the help of biomedicine can no longer be said to represent an innovation, given the fact that the different methods of ART have been in use for half a century. Nevertheless, the case law has witnessed, both on international and national levels, new issues continually coming up, on the one hand, and on the other, certain issues remaining unanswered adequately for years. Some of the controversial practices are posthumous fertilization, surrogate motherhood, mitochondrial transfer and cloning.
There are arguments against and in favour of posthumous fertilization. Some countries accept the practice of posthumous fertilization; on the other hand, some explicitly forbid posthumous fertilization, and some countries do not have explicit regulations, so it is not clear at first glance if this practice is allowed. This procedure is allowed in, for instance, the United Kingdom, Spain, Belgium, Greece, and Northern Macedonia but forbidden in, for instance, France, Italy, and states of the region of former Yugoslavia (except Northern Macedonia). In Serbia posthumous fertilization is not explicitly forbidden or allowed.
One of the arguments against posthumous fertilization is the fact that a born child would not have the father – de facto. De iure, the father is the mother’s husband or partner. So, the interest of the child to be cared for by two parents is the reason why some countries do not allow posthumous fertilization (ethical and human rights of a child argument). One of the arguments which is in favour of posthumous fertilization is the respect for the reproductive right of the woman to have a child, regardless of the fact that her husband/partner is not alive (reproductive right as a human right argument).
Serbian Law on Biomedical Assisted Fertilization 2017 does not have an explicit stipulation if posthumous fertilization is allowed or forbidden. Thus, it is necessary to keep in mind relevant articles that exist in this Act. In Serbian law, apart from married or heterosexual partners who are considered as subjects of medically assisted fertilization procedures, exceptionally, the right to bio-medical assisted fertilization procedure is entitled to an adult and legally capable woman living alone who is able to perform parental duties in the best interest of the child (Art. 25). Donor insemination (AID) of the woman without a partner is a procedure which in family law has a consequence that the born child would not have a father. This situation has some similarities with posthumous fertilization. In both cases, the child will not have a father de facto; she/he will have only one parent – the mother. De iure, in the situation of posthumous fertilization, the child will have a father, who is the mother`s husband or partner. So, the argument that the child will not have a father to take care of him/her in the situation of posthumous fertilization is not justifiable, as this is the same in the situation of a single woman as a subject of the process. Having in mind that Serbian law allows single women to have access to assisted reproduction procedures, it could be an argument to allow posthumous fertilization in Serbian law de lege ferenda. The question of posthumous fertilization is important in practice in Serbia, as two court cases on posthumous fertilization occurred in 2023.
Legislation of Serbia does not permit surrogate motherhood. Relevant acts are the Family Act of Serbia, passed in 2005, and the Law on bio-medical assisted fertilization, passed in 2017. Law on bio-medical assisted fertilization explicitly prohibits this practice (Art. 49/18). Performing surrogate motherhood creates a criminal offence with the punishment of imprisonment from three to ten years (Art. 66).
De lege ferenda, if it is decided to regulate surrogate motherhood in Serbia, in our opinion, one should start with restrictive solutions. That would mean that only gestational surrogacy would be permitted, i.e. the egg has to originate from the woman who wants the child and not from the surrogate mother.
There are often different interests in life, and the law often has to decide which interests it wants to protect. Which interest will be protected depends on many circumstances, starting with ethical aspects and social acceptability, in this case, on the progress of reproductive medicine. By permitting surrogate motherhood, we are choosing to protect the interest of the infertile couple, i.e. the woman who cannot carry out a pregnancy and her husband/partner.
There is a great difference between a donation of sperm, even a donation of an egg, and surrogate motherhood because the latter case includes carrying and giving birth to a child. Pregnancy and giving birth to a child lead to the creation of emotional ties between the mother and the child, which sometimes seem difficult to break. Problems that may appear, legal and existential, are extremely sensitive and complicated; in extreme cases, they are opposed to the principle of the child’s best interest. Still, surrogate motherhood is, for some couples, the only possible way to obtain a child who is genetically connected to them, which sometimes represents their most important goal in life. Surrogate motherhood could be permitted only in cases that are medically justified when it is the only way for someone to obtain his/her own child. All other motives are unacceptable and prohibited (aesthetic reasons, professional reasons for which a woman would not wish to undergo pregnancy and delivery).
Keeping in mind that some countries permit surrogate motherhood, and some forbid it, complex problems might arise in practice. Most serious problems consider the child, as sometimes the child could become parentless and stateless, which represents a violation of the principle of the best interest of the child and the human rights of a child.
In one decision involving a child born as a result of surrogate motherhood, the European Court for Human Rights has respected the wide margin of appreciation of each country (Paradiso and Campanelli v. Italy [GC] - 25358/12 Judgment 24, 1, 2017).
In its practice involving IVF procedure the European Court for Human Rights considered that the margin of appreciation to be afforded to the respondent state must be a wide one, as well, having in mind “...sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touched on areas where there was not yet clear common ground amongst the Member States” (S.H. and Others v. Austria Application no. 57813/00, Judgment 03/11/2011).
One important human rights issue concerns the child`s right to know who his/her biological parents are as a component of the child`s right to identity. The principle of child’s rights was introduced in the Constitution for the first time in 2006. It is stipulated that a child shall enjoy human rights suitable to their age and mental maturity; that every child shall have the right to a personal name, an entry in the registry of births, the right to learn about its origin, and the right to preserve their own identity (Art. 64). Serbian Law on biomedical assisted fertilization stipulates a right of a child to ask for data on the donor for medical reasons only. These data are not on the personal nature of the donor, but only the data of medical importance for the child, his future spouse or partner, or their future offspring (Art. 57). On the other hand, most European states stipulate the child right to know the identity of the donor (UK, Sweden, Austria, Switzerland, Germany, Netherlands, Croatia etc). However, some still stipulate the secrecy of the donor identity (Russia, France, etc).
One new technology which will have significant implications for human rights in bioethics and health in the next 5 to 10 years is in vitro fertilization with three parents. This is a procedure of mitochondrial transfer. It is a specific method of in vitro fertilization in which the egg cells of two women and the sperm cells of one man are taken, and only the nucleus is used from one egg cell, and the other parts of the cell from the other. The consequence is the child who will have three genetic parents. This is the way to avoid severe diseases resulting from deficiencies in mitochondria. Ethical concerns that this procedure raises include the possibility for one person to have three genetic parents, a situation which was unthinkable in human history until recently. It raises a question of the human right of a child to identity.
Cloning is another specific technology that will have significant implications for human rights in bioethics and health in the next 5 to 10 years. The Serbian Constitution explicitly prohibits the cloning of human beings (Art. 24/3). However, therapeutical cloning is a technology which would be of great help as a method of treatment of different diseases and, in some countries, is already allowed. Ethical concerns that this procedure raises include the possibility of creating identical persons. This should be forbidden in the future, as well as it is nowadays.
International conventions should be helpful in putting in place structures and procedures to enable states to ensure that particular obligations are being met in the context of transnational phenomena. This is so for the practice of surrogate motherhood, as an example. The Hague Conference on Private International Law has issued several Preliminary Documents on surrogate motherhood.
In the field of assisted reproductive technologies, domestic legislation might be crucial as the principle of wide margin of appreciation is the principle accepted internationally, for example, in the court practice of the European Court for Human Rights.
Organizing interdisciplinary international conferences, which would involve bio-ethicist professionals, healthcare professionals, human rights advocates, and policymakers, would be one method to address emerging challenges effectively.
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