Αssisted Reproduction and the Law. presented by Theodoros Trokanas, Lecturer of Civil Law & Biolaw, School of Law European University of Cyprus

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1 Αssisted Reproduction and the Law presented by Theodoros Trokanas, Lecturer of Civil Law & Biolaw, School of Law European University of Cyprus

2 Human Reproduction primordial human instinct legitimate desire component of human personality A constitutional right founded on the right to privacy (American legal theory) or the right to free development of personality (prevailing opinion in Greek theory) constitutional protection not only to natural (coital), but also to artificial (non-coital) reproduction. Theodoros Trokanas: T.Trokanas@euc.ac.cy 2

3 Scope and extent of the right to reproduce highly controversial the right not to reproduce (negative aspect) VS the right to reproduce (positive aspect) Different choices, at different stages of procreation Several derivative rights Theodoros Trokanas: 3

4 The right not to reproduce (I) Prior to conception: (a) the right to contraception (b) the right to voluntary sterilization (c) esp. in artificial reproduction the decision not to seek fertility treatment (i.e. not to use one s gametes for non-coital conception). Theodoros Trokanas: T.Trokanas@euc.ac.cy 4

5 The right not to reproduce (II) After pregnancy has begun (after implantation): (a) the right to abortion (b) the right not to be born wrongful birth & wrongful life actions Theodoros Trokanas: 5

6 The right to reproduce (I) The right to beget and bear children if one wishes for it A negative or a positive right? Components: (a) whether (b) with whom (c) when to reproduce (d) how many children to have Theodoros Trokanas: T.Trokanas@euc.ac.cy 6

7 The right to reproduce (II) (e) what kind of children to have (i) choice of contemporary private eugenics (ii) choice of the sex of the child (iii) choice of reproductive cloning Theodoros Trokanas: 7

8 Modern private eugenics (I) Preimplantation Genetics Diagnosis (PGD) alternative to prenatal diagnosis for couples at a risk of transmitting a genetic defect to future child sex-determination in case of X-linked diseases improve effectiveness of assisted reproduction for couples with high risk of poor prognosis in ART treatment (eg. repeated abortions or advanced age). Theodoros Trokanas: T.Trokanas@euc.ac.cy 8

9 Modern private eugenics (II) Italian Law 40/2004 on AR prohibits use of IVF and PGD ECHR: COSTA AND PAVAN vs ITALY (28/08/2012) Ms Costa and Mr Pavan, an Italian couple, healthy carriers of cystic fibrosis, after the birth of their daughter affected by the disease, wanted to avoid its transmission to their offspring According to Court a violation of Article 8 (right to respect for private and family life) of the Convention Theodoros Trokanas: T.Trokanas@euc.ac.cy 9

10 Sex selection Medical vs non-medical purposes Family balancing an equal number of boys and girls? Suggested ethical guidelines: (a) not for the first child, (b) not when balance already exists in the family, (c) only if the selected sex is the least represented in the family. Theodoros Trokanas: 10

11 Reproductive cloning an alternative method of procreation? strictly forbidden by all international and national, legal and non-binding, texts Theodoros Trokanas: 11

12 To have biologically related children or not? choice between homologous and heterologous artificial insemination Homologous fertilization gametes of spouses or partners Heterologous fertilization sperm, ova or fertilized ova donated from third parties (donors) Theodoros Trokanas: 12

13 Disposition (donation) of gametes and fertilized ova a regulatory disparity in EU sperm donation prohibition Italy, Lithuania, Turkey ovum donation prohibition Germany, Switzerland, Italy, Croatia, Norway, Lithuania Under the influence of older official European texts? eg. Principles set out in the report of the ad hoc committee of experts on progress in the medical sciences, 1989 Theodoros Trokanas: T.Trokanas@euc.ac.cy 13

14 S.H. AND OTHERS v. AUSTRIA (03/11/2011) Austrian legislation prohibits sperm/ova donation ECHR: First Section Judgement (1st April 2010): Austrian legislation violates article 8 of the Convention (the right to respect for private and family life). ECHR: Grand Chamber Judgement (3 November 2011): no violation! although there was a clear trend across Europe in favor of allowing gamete donation for IVF, the emerging consensus was still under development and was not based on settled legal principles! Theodoros Trokanas: T.Trokanas@euc.ac.cy 14

15 The status of the early embryo 1985: neologism pre-embryo conceived by the anglosaxons. 1990: adoption in HFEA the fertilized ovum from the 1 st up to 14 th day after conception, but before implantation appearance of the primitive streak, which is forerunner of the central nervous system no universal acceptance Theodoros Trokanas: T.Trokanas@euc.ac.cy 15

16 Regulation of parenthood by intention parenthood by intention = socioaffective parenthood decline of significance of biological elementreinforcement of the intentional element For instance, the male spouse or partner who has consented to the submission of his female spouse or partner to heterologous artificial insemination cannot contest the parenthood of the child to be born. Theodoros Trokanas: T.Trokanas@euc.ac.cy 16

17 Biopolitics The right to reproduce: not an absolute right subject to legal restrictions Each society prioritizes certain interests and choices assertion about corresponding rights. MAP: a matter of public policy, which is what the term biopolitics conveys. Theodoros Trokanas: T.Trokanas@euc.ac.cy 17

18 Criteria for access to MAP Medical Age Criterion Social Economic Theodoros Trokanas: 18

19 Medical criterion (I) infertility or subfertility failure to conceive after 12 months of regular, unprotected sexual intercourse, or the occurrence of 3 or more consecutive miscarriages or stillbirths. Social considerations? inability to have offspring in the natural way due to objective circumstances eg. a spouse or a partner serving a prison sentence ECHR: DICKSON vs THE UNITED KINGDOM (4 December 2007) Theodoros Trokanas: T.Trokanas@euc.ac.cy 19

20 Medical criterion (II) Does the risk of transmission of a (severe) disease to the future child encompass viral illnesses? HIV/AIDS: Sophisticated anti-retroviral therapies (HAART) increase in life expectancy & life quality a chronic rather than a fatal disease HIV-infected couples (sero-discordant and seroconcordant) reconsider reproductive planning The French, Greek and Cypriot legislations permit such access to MAP Theodoros Trokanas: T.Trokanas@euc.ac.cy 20

21 Medical criterion (III) Therapeutic end for a third party? savior sibling Molly Nash case in 2000 was the first worldwide HLA typing of the fertilized ovum by PGD explicitly legislated in Spain and the United Kingdom. Theodoros Trokanas: T.Trokanas@euc.ac.cy 21

22 Age criterion 2 schools of thought 2 legal tendencies an abstract formulation MAP is permitted to those having the natural ability to procreate OR a concrete maximum age limit? The first Greek law (3089/2002) followed the first path, while the second one (3305/2005) lays down a maximum age limit of 50 years for women, but not for men. Same solution adopted by Cypriot legislator Theodoros Trokanas: T.Trokanas@euc.ac.cy 22

23 Social criterion (I) fusion of law with public morals (sexual morality) Heterosexual married couple model Heterosexual non-married couples? Homosexual partners? Only in Sweden, Iceland, Norway, the UK Theodoros Trokanas: 23

24 Social criterion (II) Single-parent families? single women without a partner post-mortem insemination Theodoros Trokanas: T.Trokanas@euc.ac.cy 24

25 Economic criterion high MAP cost social security systems coverage economic recession budget cuts on welfare state benefits public subsidizing suspension? Theodoros Trokanas: 25

26 Conclusion reproductive decisions touch the very essence of human existence due respect and regard for the interests of all the persons involved Theodoros Trokanas: 26

27 Theodoros Trokanas «Human Reproduction, Individual autonomy and its limits» Sakkoulas Publications Athens-Thessaloniki, 2011 Theodoros Trokanas: 27

[Act on Artificial Fertilisation and use of Human Gametes and Embryos for Stem-Cell Research] 1) No. 55/1996 1) Act No. 27/2008, Article 9

[Act on Artificial Fertilisation and use of Human Gametes and Embryos for Stem-Cell Research] 1) No. 55/1996 1) Act No. 27/2008, Article 9 as amended by Act No. 65/2006, Act No. 27/2008, Act No. 54/2008,