Poland’s Civil Rights Advocate weighs in on legal dispute over whether a husband can prevent embryo transfer in IVF case.
What Should Courts Consider When Ruling on IVF Cases?
According to Article 21, section 2 of the infertility treatment law, in cases where the husband or sperm donor from partner donation does not consent, the family court may permit embryo transfer. The law is silent, however, on what steps can be taken when a woman does not consent to implantation.
Supreme Court Case: Woman Wants to Use Embryo Despite Husband’s Objection
The case before Poland’s Supreme Court involves a woman who wishes to use an embryo created from partner sperm donation in an IVF procedure. She is in conflict with her husband, with whom she is in the midst of divorce proceedings. The husband objects to the embryo transfer, but lower courts ruled in the woman’s favor and permitted the IVF procedure. Consequently, the husband filed an appeal with the Supreme Court, which asked the Civil Rights Advocate for their opinion.
Civil Rights Advocate Emphasizes Core Values
Presenting his view, the Civil Rights Advocate primarily drew attention to the values that courts should consider in such cases. He cited Article 4 of the infertility treatment law, which states that infertility treatment must respect human dignity, the right to private and family life, with particular regard to legal protection of life, health, and human rights and interests. Prof. Marcin Wiącek also pointed to other provisions indicating that the legislature seeks to respect the decision-making autonomy of both women and men using IVF procedures. For example, until the embryo is created, they can withdraw consents previously given.
Civil Rights Advocate Notes Legislature Recognition of Embryo Subjectivity
The Civil Rights Advocate also notes that the legislature recognizes the subjectivity of the embryo itself. There are legal solutions that guarantee that a properly developing embryo will not be destroyed but will be implanted into a woman’s body.
Professor: Forcing Implantation Against Woman’s Will Would Be Unconstitutional
Prof. Wiącek also believes that it would be unacceptable under the current constitution to allow forcing implantation against the will of the woman who is the donor. This is because implanting an embryo necessarily violates her bodily integrity.
Civil Rights Advocate: Infertility Treatment Law Is Constitutional
Taking all this into account, the Civil Rights Advocate stated that although Article 21, section 2 of the infertility treatment law is “highly concise” and therefore raises interpretive doubts, its wording itself does not determine its unconstitutionality. By referring to a purposive interpretation, one can decode the values that a court should consider when deciding to permit embryo transfer against the will of a male donor. The Advocate also posits that formulating a closed catalog of criteria that courts should consider may be hindered by the nature of such cases. “Therefore, maintaining a certain generality of the provision seems desirable in this context,” concluded Prof. Wiącek.