Human assisted reproduction and individual rights

First of all I wish to remark on the tittle of my Introduction. We originally though of addressing individual rights and we ended up addressing the rights of the individual. What I will try to do through my introduction is to briefly describe the different rights that are affected by assisted reproduction.

The terms I will use might be difficult to grasp and differentiate but then I did not want to run the risk of making reference to just fundamental rights. Needless to say, some of the rights involved are “fundamental” while others are not, in spite of the fact that they are equal in importance to the individual.

When I first approached the issue, I reviewed each and all techniques for assisted human reproduction described in scientific and juridical literature in order to delimit the likely rights involved or those which might be easily violated. So, in the first instance, I looked at artificial insemination or IVF techniques and tried to assess the scenario before these techniques are even performed. From the juridical point of view I then started to sort out the potential problems and rights related to the signing of the contractual document. However, this morning I was skimming through the Minutes of last July’s meeting and I read that you had discussed on a very interesting issue: the likely right to human procreation. Somebody made reference to Art. 12 of the Universal Declaration on Human Rights in order to point out that the right to get married and start a family was therein considered... Juridically speaking a married couple are “a family unit” whether they have children or not but in my opinion the meaning of Art. 12 is that two individuals, a man and a woman, have the right to get married and have children together. I am not specialised in Private International Law and so I do not know whether what I am saying makes any sense from that perspective. As I am an expert in Civil Rights, what I understand is that the concept of “marriage-based family” is the one underlying the right described by Art.12 and so an analogy could be established for non-marital situations and as from there a wider interpretation of that right could be inferred .That, in my opinion, would much better suit the current social reality to which the rules are to be applied . It cannot escape us that there are couples, non-married couples, who start families together and whose stability as a couple equals that of traditional married couples. It is in that sense and in that context that I studied in depth the “right to procreation” because this right is inferred but does not appear described as such in any of the texts I read on the issue. Perhaps in the International Law context analogic interpretations are to be found correct; were that the case, I would then have to look into the matter in greater depth and even perhaps change my mind on this.

To the contract of artificial insemination or IVF, or any other technique, whose juridical and ethical problems are not different, the only one right I would see at stake is the right to information.This right ought to be granted to the person on whom the reproduction technique is to be performed and also to the husband/partner who agrees to have it done, be it his own genetic material or somebody else’s genetic material that is to be used. We simply cannot forget that -at least in our System- the right to information is contemplated within the general Law on Health issues, which is soon to be complemented with a law on Informed Consent. Nevertheless, reference to documents need not be made now as this right is widely recognised in all the countries in our cultural area. The only potential problem I see with the right to information is the presumed liability on the part of the medical team intervening in that assisted reproduction. On this particular aspect I once wrote that the information provided to the individual should be extended to biological, juridical and ethical considerations over the potential action... Well, perhaps the ethical aspects have already been considered by the couple that have made the choice... It is also possible that they are aware of the juridical aspects involved but, in my opinion, the medical team in charge should remind them of the fact that the filiation link that it is going to be established will be permanent and inviolable. I am not sure that this information is actually provided but I definitely believe it should be so.

As regards gamet or pre-embryo donation, information on every related aspect should also be considered. Presumably, a person who donates his sperm -in the case of artificial insemination- knows what he is donating for but, nevertheless, information on the likely consequences of his action should be provided. In our System, for instance, the anonymous condition of the donor is something relatively kept because under certain exceptional circumstances his name can be made known, although in principle the only information that might be available on the donor is that regarding his general characters as biological father.

In the field of gamet and pre-embryo donation, the concept of “human dignity” is frequently used to prevent any such donation. Some people claim that assisted reproduction with donor sperm is unworthy, or attemts against “human dignity” because the act itself, the donation of sperm, is unworthy. But I personally do not understand why it should be more worthy in the case where the husband’s sperm is used. Frankly, there is no reason whatsoever to state that dignity is not offended when insemination is done with the husband’s sperm and that the use of donor sperm is an offense to human dignity.

Another right involved in gamet or pre-embryo donation is the right to privacy (on the part of the donor) which is established in terms of “secrecy”. Other likely rights involved are related to filiation. The right any child has to have a mother and a father is frequently alleged and I myself believe it desirable for a child to have a mother and a father but there is not such a right .. I have not come across this right in any legal text, be it national or international...No matter how desirable it may be.

On the other hand and with regard to the filiation of children born from these techniques, I see another right or principle (it is both things) that can be easily violated, a principle which translates itself into a non absolute right and that is the right to the biological truth and a right to investigate one’s paternity. This is foreseen in our Constitution but nevertheless violated with the performance of these techniques. However, this right does not pose an obstacle for the practice itself because the principle or the right to investigate one’s paternity is not recognised as a fundamental right. The truth is that numerous exceptions do exist, sometimes stemming from the very time-period established in the Law for the exercise of action...That time passes and action cannot be taken although one may be able to prove that the biological father is someone different to the man being considered the legal father. This is to say that the principle of the biological truth and the right to investigate one’s paternity are quite vulnerable in the context of assisted reproduction but are equally vulnerable in the context of natural procreation. We can try and assess whether the child actually has any possibility to investigate paternity and the the answer is - in accordance to my earlier argumentation - that the right to investigate one’s paternity is a non absolute right. But one may find a escape valve because filiation can be objected by the child or his/her parents (depending on the legal recognition status they might have) in accordance with regulations in the country where the claims and objections on paternity are presented. There might be a possibility - in a hipothetical situation - that an investigation is started... but not because of artificial procreation in itself but for the sole reason that, should that possibility exist for natural procreation, the same possibility there would be if artificial insemination were involved. However, the investigation would not take place on the basis of fundamental rights.

Some people speak of “a right to the free development of personality “ which in some circumstances might apply to the investigation of one’s paternity. That is, upon assumption that a child might undergo serious psychological trauma and as a result his/her personality would not be properly developed unless he/she gets to know his/her genetic, biological background. It is a spiky and tricky issue which a person could use to his will because it is doubtful that the right to the free development of one’s personality actually implies a right to know one’s genetic origin. Moreover, were it understood in that sense, it is still doubtful that such right would not be satisfied when the child born from these techniques is given the chance to know the phenotipic characteristics of his father. In my opinion it is a right that might be equelly involved in the case of a natural procreation and, therefore, openly disputable.

Then we have the principle of equity in relation to the born child - not the parents. This one is even harder to handle in the event the legal father-to-be, who has agreed upon donor sperm artificial insemination of his wife, would eventually deny paternity should his marriage go wrong in the mid-term. Some similar cases have been described in France but in Spain that could have never been possible because of the couple’s formally stated agreement.But then, of course, denying that child the possibility to object or even investigate his/her paternity because he/she was born from artificial reproduction and granting that particular right to the child born through natural procreation would, in my opinion, violate Art. 14 of the Constitution.

When a child reaches legal age, jurists establish a clear difference between what really is the interest of the claimant (the grown up child) and what might be the interest of his/her parents but when a child is not of age, the parents might claim in his/her behalf - as in the case of paternity impugnation in natural fecundation - were that same right recognised for children born form assisted reproduction techniques. The problem , then, would be how to actually establish that difference when that father or that mother is objecting to paternity in the interest of the child and when he or she is executing action in his/her own interest - notwithstanding the law openly forbids impugnation of paternity.

And with regard to post-mortem reproduction, in our System the previous consent from the deceased person is required. The System also seems to establish a clear difference between post-mortem insemination performed within the 6 month period after the partner’s death and posterior post-mortem insemination. The spirit on the law on Assisted Reproduction Techniques is not very clear with regard to the recognition of filiation and to the likely rights of heirs- at- law in the event of a post-mortem insemination performed out of the 6 month period therein established.. And that, in my opinion, would be discriminatory for the resulting child, conceived with his biological father’s own genetic material because had he/she been conceived in the 6 months after his death, the child would be legally and genetically speaking his/her father’s child whereas in the other case, he/she would still have the same genetic load but filiation could not be determined in legal terms. I do not think many women find themselves in situations such as the one I have described but the issue here is that sooner or later there might be a case and we need to know how to handle it.

Another spiky issue at stake in the context of artificial reproduction is that of single women who are alone, that is, a woman who is neither married nor lives with a male partner. I am not going to say whether I find this a desirable situation or not. I will simply try and approach the issue from the juridical standpoint. We must admit that the very principle of equity leads to the following situation : if we grant the right to assisted reproduction techniques to a married woman, we cannot deny the same right to a single woman on the basis of that equity. But the law clearly forbids that even in the case of a woman living more usorio with a male partner. But, suppossing a woman, neither married or living with a male partner, wanted to benefit from assisted reproduction....should it be not granted to her... discrimination would be more striking than in the former example I gave you. So the right to procreate would come hand in hand with the principle of equity and, in a related context - with the right to have her health protected in the event the woman - in spite of her status - were infertile though sterility is a disputable condition in terms of justifying access to health protection.

On the other hand we have the right to the free development of personality, which is clearly established in our Constitution. It seems that the experience of maternity is important to many women, and a particularly strong urge on reaching a certain age and therefore it is something that deserves assessment.

The right to privacy in relation to the way in which she chooses to procreate is a related right to the right to freedom. One cannot tell a woman to just jump into a man´s bed to have that baby she so much wants when there are other ways available, right?. Well, in any event, the rights that I have described in relation to health protection, free development of personality and privacy are not as “ strong” so to speak as the right to be treated with equity at the time a woman wishes to have access to assisted reproduction techniques.

And to end my presentation ... well, there are couple of references yet to be made. In surrogate pregnancies the major problem I woud see is that of “breaking” the principle of the biological truth but then this principle is often overseen in natural procreation as well so this would be no obstacle as to forbid this type of reproduction and so one might say that the prohibition to surrogate pregnancies is well expressed as to undesirable. But there is no legal fundament to prevent a single, alone woman from demanding access to it and who should have a right to on the basis of equity. We cannot find a single one Constitutional principle or fundamental principle that obliges to the recognition of a real possibility of access to surrogate pregnancy, might a man or a woman demand it. However, we would find a principle that opposed to the claim, though the principle might not be strong enough to enforce prohibition due to numerous exceptions one could come across. All in all, as there is no strong argument in favour or a strong argument against it, surrogate pregnancies have been prohibited altogether. It is forbidden and that is it, and I myself find it reasonable or desirable.

And my last reference will be related to the pre-embryo, that what we call pre-embryo. The likely and questionable right here involved is the right to life and at the time of arguing about the pre-embryo’s right to life as we understand it to be, we find that from the juridical perspective - no matter how strongly we may want to do so - it is impossible because there is a law on Assisted Reproduction which does not consider that right as such. Rather, it implies that the pre-embryo has to be born first. We may ask ourselves whether the law has abused any existing juridical ordaining, in the sense that something contrary to the exisiting juridical principles was done. I personally do not think so for various reasons. The Constituion speaks of a right to life and then our Constitutional Court one day comes up and very nicely tells us that NOT everyone has a right to life because , even though it is said that everyone has that right ...” ... life is a continuous process....” And, well, Marcelo Palacios himself referred to this in the morning session so I will not go back to that. And it was this very statement by the Constitutional Court that resolved the issue of abortion in Spain.

Therefore, the question is that in the western society there are many countries where legislation on abortion is more or less exhaustive but nevertheless pro-abortion. Then in the context of those countries where the possibility of abortion is regognised, we cannot say that when speaking on the right to life, any reference is being made to beings that have not been born - or at least not to ALL the beings before they are actually born.

In our System, the right to life is granted to these yet unborn beigns as from a given stage of development and gestation. And let me remind you, a cryopreserved pre-embryo is not being gestated...

So in our Constitution and in our System we cannot find a fully protected right to life for ALL those which are not born. The same can be said with regard to the countries where abortion is permitted under certain circumstances. On the other hand, international texts or documents or Conventions intended for the majority of countries in their cultural area to ratify are usually very ambiguous and when they make reference to “the right to life” they do it in relation to the lives of born individuals so as to bring in as Signatories those countries with anti-abortion legislation.

Our Civil Code, for instance, in Art. 29 there is a subtle recognition of the right to life for “the conceived” , that is, human-like entities - so to speak - are recognised as worthy of protection even before they are actually born...But one must understand that this Article in the Spanish Civil Code was aimed at protecting the likely succesory rights of posthumous children and it was written or described upon the basis of the only one thinkable reality in those days : that it was something human-like being gestated in its mother’s womb.

In the days the Civil Code was devised artificial insemination and artificial reproduction of people were unthinkable ,yet current realities to us... And that is the reson why I argue that we may have to re-interprete the Declaration on Human Rights in accordance to our current reality , and that includes interpretation of Art. 29 of the Spanish Civil Code as well.

The problem lies in how to determine the “reality” to be protected and in my opinion that reality translates into “a being in gestation in the human womb that may eventually be born or not “ because we all know spontaneous abortions occur, miscarriages... So the question is that the protection of the conceived- but-not-born applies only to the being in the mother’s womb. Therefore, adaptation of this interpretation to current reality and times leads us to think that it should equally apply to the protection of the being within the mother’s womb under Art. 29 independently from the fact that” that being” might have originated under in vitro or in vivo conditions. However, stating that Art. 29, because it applies to the conceived-but-not born, should also protect the pre-embryo... is an argument I cannot accept because the pre-embryo (cryopreserved at minus 176 degrees in liquid nitrogen) is a “reality” the legislator did not take into account and then adaptation of the rule to current social reality and times is everything else but possible. We are facing a new reality for legistators to study and in Spain we have considered this new reality in the drafting of the law on Assisted Reproduction Techniques. The Law on Assisted Reproduction Techniques does not recognise that “right to life” nor was it recognised in pre-existing juridical oradining either. And so, whether that new reality is to be protected, it remains for us jurists to determine on the basis of what philosophers have to say to this regard. Biologists are equally most helpful in terms of providing scientific factual information on embryo development, the different stages and “moments” a living entity undergoes before it can be said to have reached human sustantivity, leaving potentialities aside. Because potentiality cannot be an argument for jurists to take into account... One can say that all of us sitting here represent a potential number of human-beings to become, on our part and on the part of our descendants... but the juridical body and the law does not take a concern in potentiality, despite the fact that it may be correct to assess potentials at any given time in order to enlight our discourse. Nevertheless, it is “reality” jurists have to work on and in our case it is the human reality we are working on not the human nature. My nails have human nature, for instance, and I do not intend to compare my nails to a spermatocyte or an oocyte or whatever... But there are so many other things that have this human nature.. The pre-embryo has it, for instance, but... is that really enough to regard it as “a human being “

GIJÓN (Spain), Scientific Committee Meetings on 7th and 8th May 1999