Unregulated In Vitro Fertilization Is Not the Right Solution
In July, a Polish court gave satisfaction to the mother of a frozen child who had been conceived through in vitro fertilization.
The Radom District Court issued a landmark, precedent-setting ruling on the defense of life from the moment of conception. Thanks to the commitment of our lawyers, the right to life of a particular child, frozen as an embryo through an in vitro procedure, was successfully defended. For years, Poland’s Ordo Iuris Institute has been combining its efforts to promote good laws with active advocacy for positive court rulings in cases involving defending the lives of the unborn.
“The Ordo Iuris Institute provided (free) legal assistance to the mother in this case because, while there is no doubt that in vitro fertilization is an unethical method with low effectiveness and which dehumanizes children, in this particular situation we were dealing with a procedure that had already begun, and where the child, frozen in liquid nitrogen, was waiting for a chance to be born,” commented Paweł Szafraniec, the mother’s attorney, who works for our legal think tank’s Process Intervention Center.
The case concerns a couple who, due to health problems, were unable to have children for some time. Eventually, after exhausting all the available infertility treatment methods, they decided to undergo in vitro fertilization (IVF). This resulted in four embryos being conceived. Two were discarded, one was transferred into the mother’s body, and one was frozen. The result of this medically-assisted procreation procedure was the birth of a girl on the very first attempt. The married couple then had a second child, conceived naturally.
Among the many consequences of IVF is the freezing of hundreds of thousands or even millions of conceived children worldwide.
The couple broke up two and a half years later, however, and it eventually ended in divorce. As part of the settlement agreement, which specifically governed the custody of their children, the husband left his wife the right to decide on the frozen embryo’s fate, with her assuming the obligation to pay for the child’s upkeep, both before and after birth. Once the divorce judgment had already been finalized, however, the former spouse refused – contrary to the settlement agreement – to consent to the transfer of the embryo into the mother’s body.
Among the many consequences of IVF is the freezing of hundreds of thousands or even millions of conceived children worldwide. Until recently, it seemed that they had almost no rights. This has just changed, however – at least in Poland.
The fact that this landmark ruling was delivered in Poland and not elsewhere in Europe is no coincidence, as Poland is, together with Malta, one of only two European countries (not counting the microstates of Andorra, Liechtenstein, Monaco, and Vatican City, alongside the Faroe Islands) where abortion on demand is fully banned and where a woman can obtain an abortion only in very specific cases, such as when there is a danger to her life or physical health or if the pregnancy is the result of rape.
When issuing its ruling, the court in the Polish city of Radom stated, in line with the argumentation of our Ordo Iuris lawyers, that since the Polish legislator treats the embryo as a conceived human life, which is thus subject to special protection and cannot be destroyed, and given that the transfer of an embryo for embryo donation is only possible after either being stored for 20 years or after the death of both embryo donors, in the case in question the father of the conceived child should bear the consequences of his decision. He should therefore try to be the best possible father for the child, and not deprive the already existing embryo of its right to life and the biological mother of the opportunity to give birth to her own child.
The debate over the regulation of IVF in the United States, which was sparked by the Alabama Supreme Court’s decision last February, appears to have somewhat subsided after the state’s legislature passed a law to protect IVF service providers, while at the same time bills limiting the ability of individual states to introduce restrictions on medically-assisted reproduction failed to pass in the US Senate.
After all, IVF is also about deciding the life or death of other human beings, albeit at a very early stage of their development.
In contrast with Poland, however, the United States remains a largely self-regulated market for IVF service providers, and if legislation is needed, it is rather legislation that would place some limits on what can and cannot be done.
Having been in the United States myself during the second half of June, I had the good fortune, as a European (Polish) lawyer, to meet many valuable defenders of conservative, Christian principles in the Republican camp. But to be honest, as a long-time admirer of the millions of Americans who have so courageously fought for the right to life for so many years, setting an inspiring example for our own struggle in Europe, I was stunned by the direction of the debate on IVF in America. To put it bluntly, I could not help but see it as a kind of race to uncritically support unlimited medically-assisted procreation in the United States, including among those who are, rightly, in favor of more restrictions on abortion.
For once, it might be worthwhile to look at the regulations that are already in place in Europe from a pro-life perspective. Admittedly, most societies on the Old Continent have a very liberal approach to issues such as abortion. Still, on our side of the Atlantic it is widely considered that, just as there should be some limits on when a pregnancy can be terminated by killing the embryo or fetus inside a woman’s womb, there should also be some limits on when and how an IVF procedure can be performed. After all, IVF is also about deciding the life or death of other human beings, albeit at a very early stage of their development. And indeed, most European laws reflect the need to reconcile the demand for IVF with the ethical requirement to offer legal protection to each human embryo, in its uniqueness and genetic identity.
In the United States, critics of the American approach to IVF often point to the United Kingdom as a model for government oversight, but such oversight actually already exists across the whole of Europe, even if such legislation varies greatly between the 27 European Union member states (which no longer include the UK).
Meanwhile, the issue that seems to be talked about most often in America is whether IVF should be covered by health insurance, and whether this should also be the case when medically-assisted reproduction techniques are used not as a remedy (or rather a workaround solution) for infertility, but for either same-sex couples or parents who want to be able to choose the sex and other characteristics, both physical and intellectual, of their children.
Although an EU directive from 2004 laid down the rules regarding the conditions for the use of human tissues and cells, the ethical and legal issues concerning medically-assisted procreation continue to be left up to the member states. Generally speaking, the main limitations on IVF in Europe concern the number of human embryos that can be created, the age limitation of the women asking for access to IVF, as well as the legal status and the real situation of the future child’s parents.
For example, whereas countries such as France, Spain, and Greece have laws which allow access to assisted reproduction for all couples, regardless of their marital status and/or whether they are heterosexual or same-sex couples (as is also the case in the United Kingdom), other countries such as Poland and Italy have more restrictive laws that limit access to assisted reproduction to married or cohabiting heterosexual couples.
Regarding the number of eggs that can be fertilized, Austrian law, for example, allows for the creation of human embryos only to the extent necessary from a medical perspective to achieve pregnancy. Lithuanian law states that the decision regarding the number of embryos to be created is made by both spouses or partners after consulting a doctor, but the number of embryos transferred to a woman’s body at one time must not exceed three.
In Germany, it is simply forbidden to fertilize more than three egg cells in one cycle, and all fertilized egg cells must be implanted into the woman’s womb. Germany’s Embryo Protection Act prohibits both egg cell and embryo donation, and it only allows for the freezing of fertilized eggs at the pronuclear state while severely limiting the creation and cryopreservation of surplus embryos.
Similar to Germany’s, Portugal’s law stipulates that embryos should only be created in a number deemed necessary for the success of the process, and in accordance with good clinical practice. Likewise, in Italy it is prohibited to fertilize embryos in a number greater than is necessary for one implantation, and this number should not in any case exceed three.
I cannot but fully agree with my American fellow attorney John Murdock: “How small is too small to care? That is the fundamental question now facing the citizenry in a post-Roe world.”
Switzerland’s law also specifies that during one treatment cycle, only a maximum of as many human egg cells as are necessary for medically-assisted reproduction, or else for the genetic material examination of embryos, can be fertilized. In the Swiss case, however, the maximum number allowed is 12, but IVF can only be used for those couples who, due to their age and personal situation, are likely to be able to care for and raise the child until he or she reaches adulthood.
Regarding the mother’s age limit, Czech law limits the age of women who can undergo artificial insemination to 49, while Danish law limits it to 45. In Greece, IVF is allowed up to a maximum age of 50, and according to Polish law, IVF can only be undertaken after the failure of infertility treatments which were conducted for a period of at least 12 months.
As I have already mentioned, apart from Poland, all the above-mentioned countries allow for abortion on demand up to a certain stage of pregnancy, varying from ten weeks in Portugal to 24 weeks in the UK. Despite their lack of adequate protection of the right to life from conception and the diversity of their approaches to IVF, these countries all see the need to put some restrictions on the number of human embryos that can be created and how they are dealt with.
Meanwhile, the issue that seems to be talked about most often in America is whether IVF should be covered by health insurance, and whether this should also be the case when medically-assisted reproduction techniques are used not as a remedy (or rather a workaround solution) for infertility, but for either same-sex couples or parents who want to be able to choose the sex and other characteristics, both physical and intellectual, of their children.
For example, in the United States it is in theory possible for deaf parents to decide to have a deaf child by selecting the “right” embryo during an IVF procedure. With the development of available technologies, unregulated (or “self-regulated”) IVF will inevitably lead to an increasing array of highly questionable practices of this sort.
I cannot but fully agree with my American fellow attorney John Murdock: “How small is too small to care? That is the fundamental question now facing the citizenry in a post-Roe world.”
To answer this question, I will point to the explanation given by Poland’s Constitutional Tribunal in 1997, when it invalidated an amendment to Poland’s abortion law that had just introduced a new exception to the ban on abortion in my country in cases where a woman is experiencing “social and economic difficulties.” Ruling that such an exception violated the principle of the right to life enshrined in the Polish constitution, our Constitutional Tribunal stated that “the value of the constitutionally-protected legal good, which is human life, including life developing in the prenatal stage, cannot be subject to differentiation. Indeed, there are no sufficiently precise and justified criteria allowing such differentiation to be made according to the developmental stage of human life. From the moment of its creation, human life thus becomes a constitutionally-protected value. This also applies to the prenatal phase.”
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Jerzy Kwaśniewski is the President of the Board and co-founder of Poland’s Ordo Iuris Institute for Legal Culture Foundation. He has extensive experience in civil litigation and penal proceedings which are focused on the protection of civil rights and freedoms, the rights of the family, and children’s rights. The Ordo Iuris Institute was created in 2013 and has since become Poland’s largest legal think tank, and one of Europe’s main ones on the conservative side. It primarily focuses on the right to life, the defense of the family, the defense of individual freedoms, and national sovereignty.
