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
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.