S.V. Lebedev and L.Yu. Mikheeva
The discussion about the necessity to adopt legislative acts regarding reproductive medicine has been going on for more than a decade now, from the moment that assisted reproductive technologies captured an important niche in human reproduction. Discussions of legal problems related to ART are being held in numerous countries. In Russia, as is usually the case, legislature lags behind the realities of life.
Generally, this problem is of higher priority for human reproductive health clinics that operate in this field. And it was only in the last year or two that legal experts have actively joined in on the discussion. Unfortunately, at the present time the government is not taking any visible part in that dialogue.
Let us examine some legal points for situations, where such treatment is used, from the point of view of their legislative solution. That said, we would like to point out to the reader that this article is by no means "methodological"; it merely contains thoughts on the subject of the raised questions.
There are two diametrically opposing views on the necessity of legislative regulation of Human Reproduction.
The first viewpoint (a throwback to the early 90s in our opinion), which is often defended by the board of directors of private reproductive health clinics, is this: any restrictions could only serve to further aggravate the situation; moreover, the "that, which is not prohibited, is allowed" principle is the most fitting one for this area of medicine. This viewpoint is usually supported by arguments that "ART is a clean science, and bringing a human being into this world by any means available benefits humanity."
The second viewpoint, adhered to by the majority of professional legal experts, is as follows: urgent measures have to be taken in the area of reproductive law, before the situation gets completely out of control. The lawyers' argument is more professional, based on the understanding of long-term development prospects for high tech medical assistance that can have hereditary or other civil problems in the near future.
In our opinion, the regulatory management of this area of medicine is currently tied into a "Gordian knot" of legal collisions and discords. In this article we will attempt to provide a brief overview of the most obvious shortcomings and draw a number of analogies.
This type of treatment has, for all intents and purposes, long outgrown the boundaries of a narrowly specialized area of science. Based on the most average of estimates, assisted reproductive technologies gave life to over 2.5 million children. We can already start talking about the next generation of "test-tube babies", as the very first "participants" are now becoming parents. Almost all European countries give considerable attention to reproduction. The CIS countries take turns passing legislative acts about assisted reproductive technologies. So what is happening with reproductive law in Russia?
Medical technologies have seen rapid development over the last decade, and, as a result, there has been an increase in the number of children born through the use of assisted reproductive technologies. The services of fertility specialists are in high demand with Russian citizens; and it has also become popular for foreign citizens to seek the help of donors and surrogate mothers, who are citizens of the Russian Federation.
There is no doubt that in the not so distant future there will be widespread judicial disputes in Russia regarding maternity and paternity, stemming from the assisted reproductive technologies (there have already been individual disputes on the subject). At the present time, decisions in such cases are further complicated by a legal vacuum, for Russian legislation leaves these issues virtually untouched. The norms found in article 35 of the Fundamentals of Legislation of the Russian Federation on Health Protection of Citizens, as well as in articles 51 and 52 of the Family Code of the Russian Federation are clearly not enough. Basically, there is no law that regulates all relationships in this field, rather there is a by-law – the Order of the Ministry of Health of the Russian Federation of February 26, 2003, No. 67 "On the Use of Assisted Reproductive Technologies in Treating Female and Male Infertility" – that is attempting to do so.
Despite the foregoing, there are numerous complex situations that have not been regulated legislatively – artificial insemination and embryo implantation following the death of a biological parent; the use of cryopreserved (frozen) embryos following the divorce or death of biological parents - spouses; destruction of embryos; creation and implantation of an embryo at the request of an unmarried individual; refusal on the part of biological parents-clients or a surrogate mother to honor earlier agreements to carry out specific procedures. The lack of a dedicated legal field in this area leads to quite a bit of problems in donor relations. We will be reviewing the donorship and surrogacy programmes in the following chapter.
Reproductive law must be clearly spelled out in legislation. In our opinion, there is now a heightened need in the fastest possible development and adoption of the Federal Law "On Human Assisted Reproductive Technologies and Procedures" id to them.
This type of a regulatory act could act as the basis for the creation of legislation in the area of Assisted Reproductive Technologies, as it will contain, above all, the principles of legal regulations of such situations. There is no doubt that these are the moral and legal principles, one of which should be to provide highest priority defense of a child's rights and interests (article 1 of the Family Code of the Russian Federation).
We will examine some of the existing legislative acts in greater detail. There is an echo of the perception of human reproduction as a legal ability available to all that is evident in certain statutes of the current law. Thus the Fundamentals of Legislation of the Russian Federation on Health Protection of Citizens, that view medical birth control as a special interference whose goal it is to deprive an individual of the ability to procreate, define the conditions of conducting this procedure in such a way that an individual's free expression of choice to be deprived of his or her reproductive function acts as the primary determining factor. The same factor is also key in conducting artificial termination of pregnancy.
We should note that article 35 of the Fundamentals of Legislation of the Russian Federation on Health Protection of Citizens contains direct reference to the reproductive rights: "every adult woman of childbearing age has the right to artificial insemination and embryo implantation."
However, the limits of reproductive law (or laws) and procedures for its execution are not defined either by law or doctrinally. As such, we believe it necessary to, first, redefine the scope of persons who have the right to resort to ART in exercising their right in the field of reproduction, as well as to detail the mechanisms of conducting such procedures. As we already mentioned, the Fundamentals of Legislation of the Russian Federation on Health Protection of Citizens provide this legal right exclusively to adult women. Meanwhile, article 51 of the Family Code of the Russian Federation gives a broader definition to the scope of such individuals: "married individuals who have given their written consent to the use of an artificial insemination method or embryo implantation." Thus spouses – a man and a woman, who have registered their marriage – have also been placed in a category of citizens eligible for the use of ART.
At the same time, the Order of the Ministry of Health of the Russian Federation of February 26, 2003 No. 67 significantly narrows the scope of persons eligible for ART, excluding, first of all, citizens who are not afflicted by infertility that is not susceptible to standard medical treatment, and, secondly, citizens, suffering from a number of diseases that can endanger an unborn child (or the mother). At the same time, the Order mentions the lack of a sexual partner for a woman as the grounds for carrying out an artificial insemination procedure for her. It is thus assumed that an unmarried woman has the right to resort to the services of fertility specialists not only when she is incapable of carrying a child, but also when she actually has no possibility of acquiring a child the natural way.
The provisions of the aforecited Order of the Ministry of Health cannot be taken seriously in defining the scope of persons eligible for using these methods of treatment, as this is a merely a by-law that comes into conflict with the laws of the Russian Federation in some of its provisions. And yet there is clear common sense in the approaches used in the Order.
On the surface is the question of age of the individuals resorting to treatment. At the present time, it is possible to conduct medical procedures, for example, with the use of donor gametes and a subsequent embryo transfer directly into the recipient or with an embryo transfer inside a surrogate mother's uterine cavity at the request ("order") of citizens over 50-60 years old. Thus the process of raising a child will be taking place well past the genetic parent's ("client's") middle age. History certainly knows quite a few cases of children being born to older parents, who did not resort to fertility specialists, as well as of birth and subsequent raising of children until the latter were perfectly of age. Moreover, it is impossible to forbid an older person from having a child the natural way – a precept like that cannot be viewed as fair by the society. Thus, there cannot be a simple solution to the question of a "client's" age. .
The other thing that requires legislative consolidation in this context is the compulsory preassessment of "clients" – individuals that resort to assisted reproductive technologies. It appears that it has become imperative to not only examine an individual's physical health status, but also to identify possible psychopathic deviations and provide psychological consultation and help. Such an approach to the use of ART, which eliminates accidental referrals, the ones not really related to the overwhelming need to not only give birth to but also raise a child, is only possible when these technologies are not viewed as merely business.
It is impossible to ignore the fact that these methods of treatment are currently used within the framework of a paid services agreement. Pursuant to article 20 of the Fundamentals of Legislation of the Russian Federation on Health Protection of Citizens, citizens are provided with guaranteed free medical care in accordance with the Programme of State Guarantees of Medical Care Provision for the Russian Federation Citizens Free of Charge. The Programme in question does not mention ART services in identifying the different types of free medical care. Consequently, this type of care for citizens afflicted by infertility is effectively equated with cosmetology and similar medical services that are not considered vital.
As a result, reproductive technologies are mostly used in the area of paid medical care.
Services in this area can certainly be provided by a state (municipal) institution – as a supplemental, entrepreneurial activity, or by another establishment, including a commercial legal entity. In any event, such activity by both commercial and non-commercial legal entities is considered to be entrepreneurial, in accordance with article 50 of the Civil Code of the Russian Federation.
In accordance with article 426 of the Civil Code of the Russian Federation, a contract concluded by a commercial organization and establishing its obligations with regard to performance of work or rendering of services that such an organization must, by the nature of its activity, carry out for anyone who turns to it (and that includes medical services), is a public contract. A commercial organization may not give preference to one individual over another with regards to concluding a public contract, except for cases provided for by law or other legal acts. A commercial organization is not permitted to refuse to conclude a public contract, if it is capable of providing a consumer with relevant goods and services, and of performing relevant work.
As a result, there is now a tendency among medical establishments (non-commercial legal entities) to invariably grant requests from patients, wishing to use assisted reproductive technologies. The main reason for the creation of this less than harmless tendency is not the legislation or its practical application, but rather the non-gratuitous nature of these services. The key operational principle of many reproductive centers is the achievement of high profits, which really decreases the spiritual value of assisted reproductive technologies, designed to help those, who truly need them.
Another problem that urgently requires a solution is the use of ART at the request (order) of a man and a woman, who are not officially registered in marriage. Marriage has long stopped being viewed as a necessary stage in every person's life. According to the statistics, the last 10 years saw an increase in the number of men and women, who were never married. 10 percent of couples that consider themselves spouses do not register for marriage. Moreover, roughly 400 thousand children are born out of wedlock every year, which amounts to about 30 percent of the total number of children born in a single year. These, however, are children that were conceived naturally.
Hypothetical use of ART with regard to unmarried couples is associated with a significant number of combinations, including the contestation in registering the father. If a child born via an ART procedure is genetically related only to the female partner (her oocytes were used), but has no blood relation to the male partner (donor sperm was used), such a situation would fall under paragraph 2 article 52 of the Family Code of the Russian Federation, whereby a request by an individual to contest paternity cannot be satisfied, if that individual is not the mother's husband but is registered as the child's father, in the event that at the time of the registration that individual was aware that he was not actually the child's father. By agreeing to use donor sperm and applying for voluntary establishment of paternity at a Civil Registry Office, a male partner must realize and concede the impossibility of further contestation once an entry about the child's father has been made in the register.
We believe that, in creating legislative provisions that determine the procedure for registering a child born as a result of the use of ART methods to unmarried couples and with their use of donor gametes in any form, it is necessary to take into account a couple's free and voluntary declaration of intent as a determining factor. It is believed that this individual (individuals) cannot backtrack on their decision, and in the event that the father (mother) refuses to recognize the child, a paternity record must be made against their will. Moreover, procedures for termination of parental rights and adverse legal consequences – such as alimony recovery, etc. – should be used. The exact same approach, in fact, must be used for cases where a child is born at the "request" of a single woman or a single man.
And finally, another significant problem is the use of donor material by a man and a woman without the involvement of their own gametes. A child can be born through the use of donor embryos, oocytes and sperm (see section 6 of the Instructions for the Use of Assisted Reproductive Technology Methods, approved by the Order of the Ministry of Health of the Russian Federation dated February 26, 2003). In this case, the use of surrogate mother services is possible as well. We have no doubt that the absence of genetic relationship between the child and at least one of the partners (including those who are officially registered in marriage) cannot lead to the registration of these individuals as the child's parents. The use of donor services in this case effectively equates ART and adoption. We believe that legal procedures and consequences in such cases should be similar as well. In accordance with article 125 of the Family Code of the Russian Federation, the process of adoption can only be conducted by the court. The adoption of this approach is tied to the discussion of the issue of an embryo's legal status (regime).
It is also evident that married individuals cannot resort to the use of reproductive medicine without their spouse's consent. Despite the fact that Russian citizens' perceptions of family have changed drastically from the early 1990s, marriage continues to be the kind of institution that cannot become irrelevant in a span of two decades. Despite the fact that many Russian citizens do not wish to register their marriages, this legal status still retains its significance. The possibility of delivering a child at the "request" of a man – the child's genetic father, married to a woman, who will not be registered as the child's mother is unacceptable. Such schemes will destroy a marriage, undermine its foundation of personal trust. It is quite obvious that, in order to conduct such procedures, it is first necessary to dissolve the marriage that has apparently already broken down as a partnership.
Earlier we have listed a number of problems associated with the exercise of reproductive rights by individuals of various ages and genders, married or cohabiting, and single. It is quite evident that the question of the scope of persons, who can be eligible for the use of assisted reproductive technologies, requires a clear and highly circumspect legislative solution. This scope needs to be restricted. That said, the interests of medical business cannot justify the open, public nature of the offers of fertility services provided to the general public.
Assisted reproduction is the exception rather than the rule. It's a necessary evil that should be used in a limited number of situations.
Giving man an absolute right to propagate in cases when that reproductive right is exercised naturally implies impermissibility of any type of control over the number of births and abortions. Absolute freedom of a capable adult individual in this regard can hardly be restricted from the perspective of paragraph 3 article 55 of the Constitution of the Russian Federation, which is demonstrated by numerous examples of citizens refusing contraception for religious reasons. The number of children born to such couples, who refuse to do "pregnancy planning" is controlled essentially by nature alone and determined by the parents' health status.
Raising reproductive right to the level of the absolute for the use of ART can lead to uncontrolled self-indulgence of often not quite conscious needs to egotize birth, to ultimately turn the child into a thing, a means of satisfying the immediate needs of an adult individual. The status of gametes in domestic law and foreign legal order approximates the status of things. The same is often true with regard to embryos, which inevitably leads to a disregard for the rights of a future human being – an unborn child.