Assisted human reproduction by using a donor a novelty of the romanian legislative system

• Author: Ioana Nicolae
• Position: PhD, Assistant professor Transylvania University of Brasov, Law Faculty, Romania
• Pages: 47-55

Assisted human reproduction by using a donor a novelty of … 47

ASSISTED HUMAN REPRODUCTION BY USING A DONOR

A NOVELTY OF THE ROMANIAN LEGISLATIVE SYSTEM

Ioana NICOLAE

PhD, Assistant professor

Transylvania University of Brasov, Law Faculty, Romania

Abstract

Medically assisted human reproduction by using a donor is one of the novelties of the new Civil

Code. The social reality claimed the need to legislate medically assisted human reproduction in order

to respond to the evolution of medicine and also the tendency to reduce the country’s birth rate,

infertility and sterility. At the present time, the Civil Code merely set the guidelines in regulating

this medical and legal procedure, but, in the future, the need to pass a special law which will clearly

regulate all the aspects mentioned by specialty literature is needed. The present study wishes to

discuss the main aspects regarding the medically assisted human reproduction by using a donor as

well as the phrasing of some de lege ferenda suggestions.

Keywords: private law, medically assisted human reproduction, donor, filiations, conception,

infertility, sterility.

1. Introduction

The passing of the new Civil Code on October 1st, 2011 brought on a series of

novelties in regard to medically assisted human reproduction by using a donor,

being regulated in articles 441-447 of the third title, second chapter, and the second

section. The need to legislate human assisted reproduction by using a donor is

generated by the evolution of genetics and medicine of the 20th century, which

determined the rising of new techniques, medically, religiously and judicially

controversial1. However to need to use the technique of medically assisted human

reproduction is justified by the impossibility of some couples or single mothers to

procreate naturally, as infertility is a major problem of contemporary society. The

statistics show that 30% of women over 35 years and 50% of women over 40 are

infertile. Also, almost 15% of couples are unable to procreate naturally. Infertility is

defined by doctrine2 as a couple’s inability to conceive after a year of intercourse

 E-mail: ioana.nicolae@unitbv.ro.

1 C. C. Hageanu, Family law, Hamangiu Publishing House, 2012, p. 228

2 Stefan Butureanu, Gabriela Lupsa, Medically assisted human reproduction: an interdisciplinary

challenge, Junimea Publishing House, Iasi, 2001, p. 11.

Law Review  vol. IV, issue 2, July-December 2014, p. 47-55

48 IOANA NICOLAE

without contraception or, as a reduced capacity to conceive as opposed to the

general population, While infertility can be reduced or even cured as a medical

state, sterility is of a permanent nature and is defined as the inability to procreate.

We must also consider that the birth rate has significantly dropped in the last years

and the aging of the population is one of the most important social and economical

challenges of the present society. Given these statistical facts, the need to legislate

medically assisted human reproduction procedures is fully justified, as it is an

effective method to positively influence the birth rate, as well as the proportion of

active population.

Given all these, the new Civil Code set the guidelines for this matter, but a

special law is needed in the future, a law which will regulate this issue with all

necessary details. Law no 95/2006 regarding the health reform does not regulate

medically assisted human reproduction, but only mentions human reproduction.

Title VI of the mentioned law refers strictly to in vitro fertilization, mentioning also

issues like transplants, organ donation, informed consent, as there are no special

regulations regarding the techniques for medically assisted human reproduction.

This is currently a legislative void. However, this procedure has several phases:

inside body and outside of body procedures, which harvest, process and preserve

the gametes, the fertilization process, creating pre embryos, genetic diagnosis,

transfer and embryo reduction, as the procreation process is no longer an intimate

procedure, the medical team intervenes in the intimate life of the couple, becoming

part of the process of human reproduction. In regard to assisted human

reproduction by using a donor, the used medical techniques include:

 artificial insemination with the sexual cell of a donor;

 embryo and zygote transfer, achieved by in vitro fertilization by using a

sperm donor or the transfer of eggs or both sexual cells, separate or under the from

of an embryo or zygote;

 surrogate mothers3.

In regard to the last medical technique, the doctrine4 clearly distinguishes

between the “surrogate mother” and the “substitute mother”, also mentioning a

maternity contract, without any legal regulation existing in this matter. In case of a

“surrogate mother”, it is the mother who ensures the gestation of the embryo and,

after the child is born, it is given to the beneficiaries. The “substitute mother” is the

woman impregnated with the sperm of her husband or another man whose wife or

concubine is sterile. As in the case of the surrogate mother, the beneficiary couple

will be given the child. This technique can generate emotional trauma in regard to

the mother and the child, by ignoring the connection which is naturally established

between any mother and the fetus and subsequently the child born.

3 Daniela Frasie, Medically assisted human reproduction - a legal and medical challenge of contempor ary

society, doctoral thesis, unpublished, presented at ULBS, May 9th, 2004, p. 13.

4 I. Turcu, Health law. The common ground between the doctor and the legal adviser, Wolters Kluwer

Publishing House, Bucharest, 2013, p. 423-454.

Assisted human reproduction by using a donor a novelty of … 49

The use of medically assisted human reproduction techniques must focus on

the newborn child, in regard to his legal status and his rights. The provisions of the

Civil Code show that the legislator has regulated general aspects regarding the

regime of descendants, the conditions and the denial of filiation, the confidentiality

of information as well as the relation between father and child5, without

mentioning the rights of the child conceived and born through this procedure.

Given all these, a special law regulating all these should be a priority.

2. The regime of filiation – notion, conditions, the denial of filiation

According to the provisions of article 405 of the civil Code, filiation in relation

to the mother results from birth. It can also be established by admission and legal

decision. Filiation in regard to the father in marriage is established by the effect of

the paternity assumption, while filiation in regard to the father outside of marriage

is determined by admission or legal decision. In regard to the procedure of human

assisted reproduction by using a donor, article 441 the first alignment of the Civil

Code states that this does not establish any filiation between the child and the

donor6. As stated by the Civil Code, a single woman or a man and woman can

undergo this procedure and subsequently become parents.

The procedure to follow in case of assisted human reproduction by using a

donor is expressly regulated by the provisions of the Civil Code. Thus, the parents

who wish to use this technique will express their confidential consent in front of a

public notary. Article 26 of the Romanian Constitution, article 74 letter g) of the

Civil Code7 and article 21 of Law no 46/2006 regarding the patient’s rights8, all

state that any information regarding a patient’s condition, the result of any medical

investigation, diagnosis, prognosis, treatment or personal data are confidential

even after the person’s death. In regard to European regulation, we mention article

8 of the European Convention on Human Rights, according to which every person

has the right to have its private and family life respected. The public notary is

obliged to expressly explain the consequences of such an act in regard to filiation,

also informing the parents that the relation with the donor does not provide any

legal rights or obligations. Thus, the ad validitatem form is that of an authenticated

document.

By comparison to the law of other states in which the medically assisted

human reproduction procedure by using a donor is clearly regulated, also

5 Marieta Avram, Civil Law. Family, Hamangiu Publishing House, 2013, p. 400.

6 Also see I. Turcu, Health law. The common ground between the doctor and the legal adviser, Wolters

Kluwer Publishing House, Bucharest, 2013, p. 423-454.

7 According to article 74 letter g of the Civil Code, broadcasting material containing images of a

person undergoing treatment in a medical facility, as well as any personal data regarding the health,

diagnosis, prognosis, treatment, circumstances in connection with the illness, including the result of

an autopsy without consent from the person and in case the person is dead, without consent from the

family is considered a crime.

8 Published in the Official; Bulletin no. 51/29 January 2003, Part I.

50 IOANA NICOLAE

requiring a psychological evaluation of the two parents9, it is noticed that the

Romanian legislator didn’t consider the psychological effects of this procedure.

The psychological testing would be necessary in order to establish the

psychological history of the couple and/or single woman, their mental state, their

capacity to exercise the parental duties, the risks involving this procedure and the

risk of failure of this procedure.

Another role of the psychological evaluation is to make the future parents

aware of the legal status of the child conceived by using this technique as well as

the child’s legal relations to his family. Some studies have shown that, in time, a

significant change can occur in the attitude of the people involved in this

procedure regarding the medical techniques and the result – the newborn child10;

thus, the initial positive feelings of the future parents can easily turn into negative

reactions of regret, anxiety, rejection of the child.

In regard to consent, according to article 442 second alignment of the Civil

Code, the consent is without effect in the following hypothesis occurred before the

moment of conception:

 death;

 a plea for divorce;

 separation.

Consent can be revoked at any time, in writing and even in front of the doctor

who provides assistance.

The lawmaker forbids the possibility to deny filiation in case of medically

assisted human reproduction. The character of filiation is based on the will of the

parent/parents, expressed before the medical procedure takes place, a procedure

to which they legally consent, in front of the public notary, thus determining the

legal status of the child11. By exception, the mother’s husband who did not agree to

medically assisted human reproduction by using a donor, has the right to deny

paternity. The text of article 443 of the Civil Code provides this right for the

following:

 the man who, at the time of conception, was the mother’s husband but did

not express consent for this procedure;

 the man who was, at the time of conception, the mother’s husband but after

expressing consent but before the medical procedures took place, revoked his

consent;

9 Cousineau M Tara, Psychological impact of infertility, in Best Practice&Research: Clinical

Obstetrics and Gynecology, 2007, vol. 21, no. 2, p. 293-308, source www.sciencedirect.com, accessed

July 10th, 2014 at 10:48.

10 Leiblum L Sara, Greenfield A David, The course of infertility: immediate and long-term reactions, in

Infertility: psychological issues and counseling strategies, John Wiley&Sons, New York, 1997, p. 83-

102, source : www.bestpracticeobgyn.org, accessed July 10th, 2014 at 11:05.

11 Daniela Frasie, Medically assisted human reproduction - a legal and m edical challenge of contemporary

society, doctoral thesis, unpublished, presented at ULBS, May 9th, 2004, p. 110.

Assisted human reproduction by using a donor a novelty of … 51

 the man who, at the time of conception, was not the mother’s husband and

did not express consent, but legally marries the mother before the child is born.

The lawmaker also states that in case the child was conceived in any other

ways, the provisions regarding the denial of paternity still apply12. This hypothesis

refers to the situation in which the mother’s husband denies paternity if the child

was born as a result of the medically assisted human reproduction procedure by

using a donor although he consented to this procedure.

The father, who consented to the medically assisted human reproduction

procedure by using a donor and subsequently denies paternity of the child born

outside of marriage, is liable to the child and the mother under the provisions of

article 444 of the Civil Code. In this final hypothesis, the child’s paternity is

established by the court in agreement with the provisions of article 411 and 423 of

the Civil Code. In regard to the child, he has the possibility to establish paternity

by way of trial which forces his father to provide for the child. Liability toward the

mother is conditioned by promoting a legal action by which the mother will ask for

the following type of damages:

 half of the expenses of birth and after-birth period;

 half of the expenses of providing for herself during pregnancy and after

giving birth13.

Thus, the rights and obligations of the father are the same regardless if the

child was born by medically assisted human reproduction by using a donor or by

natural conception, inside and outside of marriage. The child outside the marriage

whose filiation was established by admission or by court order has the same legal

status in regard to the parents and their relatives as the child born inside the

marriage14. We must also mention the content of article 487 of the Civil Code,

according to which the parents have the right and duty to raise the child, provide

for his medical and physical development, education and professional training

according to their own beliefs and the child’s needs; they must provide the child

with guidance and advice in order to exercise his legal rights.

3. Confidentiality of information – a principle of medically assisted human

reproduction by using a donor

One of the main principles of the medically assisted human reproduction by

using a donor is that of respecting confidential information, as article 445 of the

Civil Code states that any information regarding medically assisted human

reproduction is confidential. The lawmaker thought it was necessary to dedicate an

entire chapter of the Civil Code to the respect owed to the human being and its

inherent rights, that is Chapter II of the second title, Book I. The respect owed to

private life implies the prohibition of using any information about a person’s

12 See article 443 of the Civil Code.

13 See article 428 first alignment of the Civil Code.

14 See article 448 of the Civil Code.

52 IOANA NICOLAE

private life without its agreement and without respecting the legal boundaries.

According to doctrine’s definition, private life is formed by three components: a

certain behavior of the person (full control over their own decisions and actions as

well as any information that concern that person), maintaining anonymity and the

relations with fellow citizens15.

However, article 445 alignments 2 and 3 of the Civil Code state a series of

exceptions as follows:

o when the lack of information presents the risk of a serious prejudice for a

person’s health or the health of its descendants;

o when depriving a person of information can cause serious damage to the

descendant’s health or to a person close to them.

In the first case, the court will authorize the transmission of the information to

the doctor or competent authorities. In regard to the second hypothesis, any

descendant of the person has the right to ask for that information. They will file a

claim asking for authorization in sending confidential information. In justifying

such a request, the lawmaker stated a “serious damage to a person or its

descendants” as well as a serious damage to its health, without defining what

prejudice means or who is a considered to be a close person. These facts will be

analyzed by the court which will rule on the matter. What we notice is that

authorizing the transmission of confidential information is strictly limited to the

existence of an imminent risk and serious damage for the health. It can be extended

to other aspects of one’s private life. In regard to the close person mentioned by the

lawmaker, we can assume that the legal text means strictly the donor or the person

to which filiation has been established.

As these notions are very vague, we feel that, in the future, this area should be

more precisely regulated and the notions of serious damage and close persons

must be defined. This will create a starting point in analyzing these specific notions

and it will protect one’s right to a private life.

We must also notice that the lawmaker did not regulate the possibility to

perform a marriage between people conceived by medically assisted human

reproduction by using a donor, as the performing officer must acquire information

about the biological father in order to prevent marriage between relatives. One of

the conditions needed for marriage is the prohibition of marriage between

relatives, as well as those between collateral relatives to the fourth degree, as stated

by article 274 first alignment of the civil Code. As the exceptions from the

confidentiality principle are strictly listed in article 445 second and third alignment

of the Civil Code, in the future, we feel it is necessary to grant access to these

confidential information to the officer performing the marriage. The risk of

marriage between relatives or collateral relatives is a concern for the entire society,

15 C. Jugastru, The Respect of private life - issue s in regard to legal protection, source:

www.humanistica.ro, accessed July 11th, 2014 at 8:20.

Assisted human reproduction by using a donor a novelty of … 53

as it protects a general interest. We must also consider the medical side of this

issue, as the children resulting from marriages between relatives are unhealthy.

In conclusion, we suggest, de lege ferenda, that the officer performing the

marriage be included in the category of people with access to confidential

information regarding the procedure of medically assisted human reproduction in

case he must perform a a marriage between people conceived through this

procedure or in case such a person marries a person conceived by natural

conception.

Considering those stated above and corroborating these aspects to the

provisions of article 447 of the Civil Code according to which medically assisted

reproduction by using a donor as well as the confidentiality of any information in

connection with this procedure are established by special law, we feel that, in the

future, the general guidelines set by the Civil Code should be improved by passing

a special law which will clarify all these aspects.

4. A short preview of the regulations in other European states; de lege ferenda

suggestions

Using the medically assisted human reproduction technique by using a donor

is meant to answer the needs of infertile or sterile families or women, that of giving

birth to children. However, the attention is turned from the child who should be

the center of attention to the people who choose this procedure. Thus, the special

law must grant attention to the principle of the superior interest of the child

conceived through this medical procedure.

An analysis of the laws in other states, where this procedure is especially

regulated shows that access to this procedure must be granted to a certain category

of people: heterosexual, married couples and single women. For example, in

Germany, a single woman can use this procedure only if the attending physician

fells that the man she is living with presents stability and will give the child the

possibility to be raised by a mother and a father. In Belgium, medically assisted

human reproduction is meant only for women of age, who can use this procedure

only by signing a convention together with her partner. In Denmark, in order for

couples to choose medically assisted human reproduction by using a donor, they

must prove they can raise the child and the attending physician must provide his

agreement for this procedure.

Thus, the lawmaker should limit the category of people who are allowed to

use this procedure to heterosexual, married couples or couples who can prove

stability and other aspects significant to raise a child in a safe environment, as well

as to single women.

In Spain, for example, the sexual orientation of those involved in the procedure

is not important as it applies regardless of the status or sexual orientation.

However, our country forbids marriage between people of the same gender and

54 IOANA NICOLAE

partnerships between people of the same gender are not acknowledged, so we

chose to regulate this medical procedure for heterosexual couples, married or not.

We must also notice that in other states’ law, there are certain age limitations

for those who wish to use this procedure, an aspect which is very important and

should be regulated in the future. In our regulated legal frame, the procedure is

accessible to anyone regardless of age. It is somewhat against human nature for an

emancipated 16 year old woman to become a mother. Stating a minimum age for

this procedure in regard to the woman’s age would leave not room for

interpretation. Also, it would be important to realize that this procedure should be

used only be couples who have been medically diagnosed with infertility in order

to avoid the risk of passing certain diseases to the child or parent. These are just a

few of the issues which will be regulated by a special law.

5. Conclusions

Medically assisted human reproduction by using a donor is a novelty in

Romanian law and still generates debate as a result of the social, psychological,

medical, religious, bio ethical and legal aspects in involves. Considering the

legislative void in these areas, the doctrine debate is quite useful in this context, as

the need for a special law is more and more stringent.

The specialists in this area must collaborate in order to ensure cohesion so that

the final result meets the needs and guarantees the exclusive right of the individual

to procreate. Ensuring the full respecting of the rights of the people involved in this

process must become the lawmaker’s main objective, as the national and European

regulations in this matter must guarantee the right to a private life and the right to

dignity of any human being in the present society. It must also define the

principles of this matter, it must rise awareness in the matter of bioethics without

ignoring the results of the medical research and the impact it has on the individual.

References

[1] Hageanu, C. C., (2012), Family law, Hamangiu Publishing House, pp. 228;

[2] Butureanu, S., Lupsan, G., (2001), Medically assisted human reproduction: an

interdisciplinary challenge, Junimea Publishing House, Iasi, pp. 11;

[3] Frasie, D., (2004), Medically assisted human reproduction - a legal and medical

challenge of contemporary society, doctoral thesis, unpublished, presented at ULBS, May

9th, pp. 13;

[4] Turcu, I., (2013), Health law. The common ground between the doctor and the legal

adviser, Wolters Kluwer Publishing House, Bucharest, pp. 423-454;

[5] Avram, M., (2013), Civil Law. Family, Hamangiu Publishing House, pp. 400.

[6] Turcu, I., (2013), Health law. The common ground between the doctor and the legal

adviser, Wolters Kluwer Publishing House, Bucharest, pp. 423-454;

Assisted human reproduction by using a donor a novelty of … 55

[7] Cousineau, M. T., (2007), Psychological impact of infertility in Best

Practice&Research: Clinical Obstetrics and Gynecology, vol. 21, no 2, p.293-308, source

www.sciencedirect.com, accessed July 10th, 2014 at 10:48;

[8] Leiblum, L. S., Greenfield, A. D., (1997), The course of infertility: immediate and

long-term reactions, in Infertility: psychological issues and counseling strategies, John

Wiley&Sons, New York, pp. 83-102, source: www.bestpracticeobgyn.org, accessed July

10th, 2014 at 11:05;

[9] Frasie, D., (2004) Medically assisted human reproduction - a legal and medical

challenge of contemporary society, doctoral thesis, unpublished, presented at ULBS, May

9th, 2004, p. 110.

[10] C. Jugastru, The Respect of private life - issues in regard to legal protection, source:

www.humanistica.ro, accessed July 11th, 2014 at 8:20.