11-15 July 2023
The 1st dissemination event:
Golden Jubilee World Conference of the International Society for Family Law, Antwerpen
Title: Challenges of Medically Assisted Reproduction –
Legal Developments in the Republic of Croatia
Croatia has a long history of in vitro fertilization (IVF). The first IVF baby was born in Zagreb in 1983, only five years after Louisa Brown, the first ever IVF baby had been born.
Before the Covid pandemic in Croatia, around 1,800 children had been born every year following medically assisted reproduction (including intrauterine insemination and egg stimulation). It constituted about 5% of the total number of children born. In 2020, because of the pandemic, the percentage went down by 20% because some centres for medically assisted reproduction were shut down. In 2020, a total of 35,845 children were born in Croatia.
Two important Acts (the Medically Assisted Reproduction Act of 2012 and the Family Act of 2015) contain family-law provisions laying down the rules on the child’s origin.
Medical law providing for medical aspects is modern but governed by the ultima ratio principle (that medical reproductive health may be provided only if previous attempts have failed). Prenatal diagnostic and cryopreservation of embryos are allowed. There is also a possibility of the application of donor techniques.
The Family Act provides for the protection of traditional families and it is emphasised that medically assisted reproduction (MAR) is considered to be an issue of health, rather than a social issue, which must be solved (reflected in the regulations on who may be the MAR beneficiaries).
In reality, there is no donor programme and there are no sperm banks because finding donors is becoming very difficult. Possible solutions may be found in the import of gametes and the change of the existing legislation. The expenses of (heterologous) treatments abroad are covered by insurance companies (usually in the Czech Republic or the NR of Macedonia).
Surrogacy is forbidden, but cross-border arrangements are tolerated without too many questions, except in the case where the Croatian Health Insurance refused to approve a maternity leave to a woman whose pregnancy was not registered. Subsequently, the Croatian Health Insurance granted her a maternity leave, upon the positive opinion given by the ombudsperson for children.
In Croatia, the ultima ratio principle is reflected in the use of different MAR technologies: 16% of them are intrauterine insemination, 21% IVF, 37% microinjection of sperm and secondary microinjection, and 27% are the transfer of embryos originating from the couple. All these techniques are homologous. The costs for ten attempts altogether are covered by the health insurance (four of them for intrauterine insemination and six of them for IVF, at least two of IVF attempts have to be in natural cycles).
The MAR beneficiaries are defined in Article 10, paras 1-3 of the Medically Assisted Reproduction Act. These are women and men of legal age, having legal capacity for making personal decisions, who are married or live in extramarital unions (their statement must be a notarial deed), and who, in terms of their age and their overall health conditions, are capable of exercising their parental responsibility.
The right to medically assisted reproduction may also be exercised by a woman who has reached the age of majority, who has legal capacity and does not live in a marital, extramarital, or a same-sex union (a single woman), whose previous treatment of infertility has ended unsuccessfully or hopelessly and who, because of her age and her overall health condition, is capable of caring for the child. It is essential that a Doctor of Medicine establishes the woman’s health problem and confirms that no social but only medical infertility is involved.
Some requests have been made by persons who are in the pre/process of gender transition to cryopreserve gametes and their requests have been granted.
Legal argumentation for personal restrictions concerning the beneficiaries of medically assisted procreation is the need to balance the rights and risks of the parties involved (especially children) and the need to protect the values of society.
The beneficiaries, such as single women without any health problems and homosexual couples, are not able to have access to medically assisted reproduction techniques. Men are in a more difficult position due to a surrogacy ban, and lesbian couples are free to achieve pregnancy in some other country through the so-called reproductive tourism.
However, once established parentage by one partner in a same-sex union may enable the other to seek parental care (partner’s care according to the Act on Life-Partnership of persons of the same sex).
There have been some constitutional complaints concerning restrictive regulation, but the Constitutional Court of the Republic of Croatia was reluctant do decide on the argument that single women and homosexual couples were discriminated because they were not allowed to use medically assisted reproduction techniques.
The family law regulation provides that ‘mater semper certa est’ rule applies. The mother of a child conceived by a donated gamete or embryo is the woman who gave birth to the child (formulated as praesumptio iuris et de iure, Art. 82, para 1 of the Family Act). The mother’s husband is held to be the child’s father. If the MAR beneficiary is a common-law couple, the common-law partner must have given his previous consent acknowledging paternity, certified by a notary public. Certified consent must be given for every procedure of medically assisted reproduction, particularly regarding the type of the procedure and the origin of reproductive cells or the embryo (Article 14, para. 2 of the Act). Although the associations engaged in defending the patients’ rights object to such stipulation by stating that such a solution complicates the procedure, we are of the opinion that a request for a certified statement contributes to legal certainty.
Maternity or paternity of a child conceived in the process of medically assisted reproduction, with the donor’s consent, may not be established or contested in court proceedings (Art. 82, para. 2 of the Family Act).
An important part of medically assisted reproduction is a lack of any donor programme. It is not possible to use frozen gametes and embryos, since the “donors” of frozen gametes and embryos have not passed the necessary medical and genetic screening according to the standards recommended by the European Society of Human Reproduction and Embryology.
Another reason why a donor’s programme has not been established lies in the fact that the child has the right to know his/her origin. The child conceived by way of a heterologous technique has the right to know the donor’s/donors’ identity. Pro futuro, there are some ideas to import gametes or embryos from the European banks thus ensuring the right of the child to know his/her origin.
Indeed, since frozen embryos may not be donated, as already stated, the problem remains what to do with frozen embryos. There are around 8000-10000 frozen embryos that are subjects to legal uncertainty: the Medically Assisted Reproduction Act lays down that the State pays for cryopreservation for the first five years, and the couple covers the costs accrued in the course of the next five years. The instructions on what to do if the couple, who the embryo originates from, does not pay for the following period, are deliberately omitted. Politically speaking, it was inappropriate to decide precisely that embryos should be destroyed (due to the pro-life approach), so now these embryos are in a legal limbo. There is a legal possibility to give an embryo for “adoption” – if a previous consent was granted or after the death of donors, but only if the donors’ medical and genetic screening had been conducted, what was not the case. One of the possibilities is a merciful transfer, as conducted in some clinics in the USA. Namely, the embryo is entered into a woman’s womb if she cannot get pregnant due to the period of her cycle.
In her interview for “Politico”, Shanna H. Swan, one of the leading environmental and reproductive epidemiologists in the world, cautions that “sperm counts are set to reach zero in 2045. There’s a looming solution to humanity problems – by 2045, most men may no longer be able to reproduce because of the impact of hormone-altering chemicals.” Therefore, medically assisted reproduction may become the only way to have children. We do not know if these prophecies are accurate or not, but future challenges before medical and legal experts are as follows:
– to clarify the status of human embryos;
– to introduce informed consent of the beneficiaries of medically assisted reproduction techniques, not only to specific type of medical therapy, but also concerning the remaining embryos;
– to regulate, more specifically, criminal and civil liability of medical institutions (as there have already existed some cases of stolen eggs in Croatia that were dismissed due to inappropriate legislation);
– at the European level, mandatory tracking of the origin of children should exist, with some kind of donors’ or DNA registers, since there are donors by whose semen hundreds of children have been conceived (such as in the most recent case in Denmark);
– clear regulations should exist on the consequences of parentage in the cases of cross-border arrangements; countries should be free to decide, without any imposition on them when deciding which family forms will enjoy legal protection;
– not only the rights of 1st degree genetic relatives, but also of others, such as grandparents or siblings, as well as other relatives, should be provided for.
