Assisted reproduction or artificial insemination is a method that offers couples who have been unable to have children of their own for a long time the opportunity to fulfil their desire to have children. The first child conceived in this way was Louise Brown (United Kingdom) in 1978. In what was then Czechoslovakia, the first child conceived through artificial insemination was born four years later, in 1982.
Since then, significant medical advances have been made, assisted reproduction procedures have become much more successful and are widely used. Parallel to medical developments, legislation has also evolved to regulate key legal issues such as the determination of paternity, the obtaining and duration of consent from both partners, and the legal framework for the storage and destruction of biological material collected ( ).
Assisted reproduction at glance
The procedure of assisted reproduction (artificial insemination) is regulated in the Czech Republic by Act No. 373/2011 Coll. on specific health services (hereinafter “SHSA”). The Act distinguishes between two methods of assisted reproduction. The first method involves the introduction of sperm into the woman’s reproductive organs (intrauterine insemination – IUI). The second method involves the transfer of a human embryo into the woman’s reproductive organs, whereby the embryo was previously created by fertilising an egg with sperm outside the woman’s body (in vitro fertilisation – IVF).[1]
Assisted reproduction is used in particular by couples in which the woman or man is infertile or in which the probability of pregnancy by natural means or of carrying a healthy foetus is significantly reduced. A prerequisite is usually that other, less invasive methods of fertility treatment are unlikely to be successful. Another medically indicated area of application is the possibility of reducing the risk of transmitting serious genetic defects or hereditary diseases by means of genetic testing of the embryo created outside the body. The aim is to prevent the development of a pregnancy with a disease that would significantly burden or endanger the health of the future child as far as possible.[2] The use of assisted reproduction for the sole purpose of determining the sex of the future child is not permitted. The only exception is in cases where sex selection is medically indicated, in particular to prevent serious sex-linked genetic diseases.[3]
Artificial insemination may only be performed on women of childbearing age, which ends at the age of 49. A prerequisite for the procedure is a joint written application by the woman and the man who intend to undergo assisted reproduction together. The application must not be older than six months at the time of the procedure. The written application is part of the medical documentation and is included in the woman’s medical records.[4]
Before assisted reproduction is performed, the couple must be fully informed by a doctor about the nature, procedure, risks and possible long-term consequences of the procedure. The information provided must also cover the handling of surplus embryos, the costs involved and the legal implications with regard to the determination of paternity. A witness may be present at the couple’s request.[5]
After receiving proper information, both the woman and the man must give their written consent to the assisted reproduction procedure. Written consent must be given again before each individual treatment cycle.[6]
Written consent
It should be emphasised that the law expressly requires the couple submitting the application to declare their consent to assisted reproduction several times: first in the joint written application, then after receiving medical information, and finally again before each individual medical fertilisation procedure.
In connection with consent, the question arises as to the relevant time of the last consent to be given, i.e. the consent immediately prior to the medical procedure. Since the law does not contain any explicit provisions on this, the specific time must be determined taking into account the respective procedure according to which assisted reproduction is carried out in each individual case.
When performing assisted reproduction by means of intrauterine insemination (IUI), there are generally no difficulties in determining the time of consent. The required consent must be given before the gametes are introduced into the woman’s reproductive organs. The legal situation is more complex in the case of in vitro fertilisation (IVF). After the egg has been fertilised outside the woman’s body and the embryo has been created, it is transferred to the uterus. The question here is whether the man’s consent is required before the egg is fertilised or only before the embryo is transferred. To answer this question, we must look at the comparable situation in natural conception. In natural fertilisation, the man’s influence ends with the fusion of the egg and sperm; from this point on, conception has taken place. The same should apply when fertilisation takes place outside the woman’s body. Otherwise, a man involved in an assisted reproduction procedure would be disadvantaged compared to a man who conceives a child naturally. The case must be assessed differently if the resulting embryo is cryopreserved and is to be used at a later date. In this constellation, renewed consent is required before embryo transfer. During the period of cryopreservation, personal or legal circumstances may change significantly (e.g. due to separation of the partners or death of one of the parties involved). It would be difficult to reconcile with the principles of self-determination and attribution of responsibility to conceive a child whose legal father does not (or no longer) wish to give his consent at this specific point in time.
Consent to assisted reproduction also raises the question of possible revocation. The law does not contain any explicit provisions on this matter. According to legal doctrine, revocation is in principle permissible. However, revocation only has legal effect if the reproduction centre is notified of it before the procedure for which the original consent was given has actually been carried out.
EVANS v. United Kingdom judgment
On 10 April 2007, the European Court of Human Rights (ECHR) issued judgment No. 6339/05 in the case of Evans v. United Kingdom,[7] , which addressed the right to revoke consent to assisted reproduction. On 12 November 2001, a man and a woman presented themselves at a private clinic, where egg and sperm cells were collected from them, from which a total of six embryos were created. On the 26th November 2001, the woman underwent surgery to remove her ovaries and was advised by her doctor to postpone artificial insemination for at least two years. In May 2002, the couple separated. In July of the same year, the man contacted the clinic to inform them of the end of the relationship and to request the destruction of the embryos. The woman argued that the legal provision allowing her to withdraw her consent to the use of the joint embryos violated her right to respect for private and family life under Article 8 of the European Convention on Human Rights (hereinafter: “the Convention”).
The Grand Chamber of the ECHR unanimously concluded that there had been no violation of Article 2 of the Convention – the right to life. The Court found that the beginning of the right to life falls within the jurisdiction of the state and that embryos created by artificial insemination do not have an independent right to life. Furthermore, the ECHR found no violation of Article 8 in conjunction with Article 14 of the Convention. The right to respect for private and family life encompasses both the decision to become a parent and the decision not to become a parent. In the Court’s view, the applicant’s right to have her decision on parenthood respected could not be given greater weight than the man’s right not to have a child genetically related to him.
Judgment A and B v. France
Another significant judgment on the issue of paternity in cases where children were conceived through artificial insemination with sperm from a foreign donor without the consent of the legal father is the judgment of the ECtHR of 8 June 2023, No. 12482/21 (A and B v. France).
In April 2012, the mother and her then partner made two attempts to implant an embryo from an anonymous donor through artificial insemination, but these attempts failed. In September of the same year, the partners married, but filed for divorce on 3 May 2013. On the 12th May 2013, the mother underwent another attempt to implant an embryo from an anonymous donor. The marriage was divorced in June 2013 and the mother gave birth to a daughter in December 2013. The district court initially recognised the mother’s ex-husband as the child’s father. In 2015, however, he applied to contest the acknowledgement of paternity, arguing that the child had been conceived when he and the mother were no longer living together and that he had not consented to the artificial insemination attempt carried out in May 2013. The man’s application was granted. The mother subsequently argued before the ECHR that the contestation of the acknowledgement of paternity violated her daughter’s rights to respect for family and private life under Article 8 of the European Convention on Human Rights ( ).
The court found that in the present case it was clear that the husband was not the biological father of the child. The man’s initial consent to artificial insemination did not constitute permanent, irrevocable consent for future interventions. At the time of conception, the mother and her husband were not living together; the mother had been staying in Cuba for a period of time and had later returned to France without being in a relationship with her husband. In addition, the application to contest paternity was filed when the child was only 14 months old. The court found that it was in the child’s best interests to know his true biological parentage. Maintaining a relationship with a man who is not the child’s father and does not wish to be so would not be in the child’s best interests. Consequently, the ECHR concluded that contesting paternity did not violate the child’s right to respect for his private life under Article 8 of the Convention.
Assisted reproduction in the event of the death of a spouse or the use of donor sperm from abroad
Since the couple’s renewed consent is required before each assisted reproduction procedure, there is generally no doubt about the consent of those involved. However, the procedure followed by the healthcare provider when one of the partners has died is questionable. Does the death of one partner automatically constitute grounds for exclusion from the next artificial insemination procedure? And how should one proceed if the deceased partner expressly declared during his lifetime that he consented to the use of his cryopreserved sperm for further artificial insemination of his partner in the event of his death?
Constitutional Court decision, case no. I. ÚS 1099/18 of 8 November 2018
The ruling concerns a complainant who was planning artificial insemination together with her husband. The husband had previously signed a consent form for the cryopreservation of his sperm. Subsequently, both spouses signed a consent form for the treatment of infertility by means of ectopic insemination. They also consented to the thawing and use of the cryopreserved sperm for future treatments. Shortly after the treatment began, the complainant’s husband died. Due to psychological stress, she was initially unable to continue the treatment. When she later wanted to complete the IVF treatment, the clinic refused to perform it because there was no valid consent from her deceased husband for the further procedure.
The plaintiff then applied for permission to complete the treatment. She argued that her husband had expressly consented to his wife being fertilised with his cryopreserved sperm during his lifetime and had never revoked this consent. In her opinion, refusing treatment would not respect his reproductive wishes as expressed in his consent. The plaintiff also argued that carrying out the treatment would not infringe on the rights of third parties. On the contrary, not carrying out the treatment would constitute an interference with her right to respect for her private and family life under Article 8 of the European Convention on Human Rights.[8]
The courts rejected the applicant’s request on the grounds that the law only allows artificial insemination for couples. Since the applicant was no longer in a relationship after her husband’s death, she could not have applied for the treatment on her own. Although her husband had given his consent to artificial insemination at the start of the treatment, his continued consent could not be anticipated or replaced by a court decision. According to the law, artificial insemination is only permitted for living persons; in the event of the death of a partner, there is no legal norm that would allow the procedure to continue, nor can such a norm be derived by interpretation. The purpose of artificial insemination is to “treat the infertility” of an infertile couple. In the opinion of the courts, the death of a spouse ends the couple as such, so that the couple’s infertility can no longer be treated. The Supreme Court also pointed out that the refusal to continue treatment did not deprive the plaintiff of the opportunity to become a mother, but merely prevented her from conceiving a child with her deceased husband. The wording of the husband’s consent to cryopreserve his sperm was also of particular importance. It contained a provision that the frozen biological material was to be destroyed in the event of the husband’s death. In the court’s view, this raised doubts as to whether the husband actually intended to become a father after his death. Furthermore, according to the law, consent given at the beginning of treatment is only valid for six months. This was another reason why the clinic could not perform artificial insemination. However, due to the provision for the destruction of the sperm in the event of death, even the six-month period was not relevant, as the biological material could not be used for treatment at any time after the husband’s death.
Constitutional Court Judge David Uhlíř disagreed with the courts’ decision. In his view, the ruling was based on an incorrect interpretation of the law and disregarded both the wishes of the deceased and those of the complainant. In the judge’s opinion, the conception of a child is a sovereign private right of a man and a woman, which is protected under the right to respect for private life and in which the state should not interfere. If a couple cannot conceive naturally and therefore uses assisted reproduction methods, the legal regulation of such a procedure must be interpreted in such a way that fundamental rights and freedoms are preserved and restrictions are not applied beyond their intended purpose. According to this legal opinion, refusing to complete the treatment solely on the basis of the expiry of the husband’s consent appears contradictory. According to the judge, the purpose of this consent was to prevent conception without the husband’s consent, but not to exclude the continuation of treatment after his death. Uhlíř also pointed out an inequality of treatment: in the case of anonymous sperm donation, the clinic does not check whether the donor is still alive. Why should the situation of a non-anonymous donor be exacerbated by this? As long as there is no legal provision expressly prohibiting the use of sperm after the donor’s death, the Constitutional Court judge believes that the actual will of the deceased should be determined. However, such a determination cannot be based solely on the wording of the consent form.
Judgment of the ECtHR of 8 December 2022, Pejřilová v. the Czech Republic
The applicant lodged an appeal against the judgment of the Czech Constitutional Court with the European Court of Human Rights (ECHR), again claiming a violation of her right to respect for her private and family life under Article 8 of the Convention. However, the ECHR upheld the decision of the Constitutional Court and found no violation of Article 8. It held that the Czech courts had acted in accordance with national law when they refused to allow the applicant to use her deceased husband’s cryopreserved sperm. The requirement of consent for artificial insemination was lawful, and such consent could not be replaced by a court decision in the event of death, especially if the deceased had previously signed a consent form for the destruction of the biological material in the event of death. The ECHR also approved the legal provision that consent to artificial insemination is only valid for a period of six months. This requirement served the general interest and was therefore lawful. The ECHR clarified that Czech legislation was compatible with Article 8 of the Convention, which allows the legislature a certain degree of discretion. Furthermore, there was no consensus at European level on whether a widow could use her deceased husband’s frozen sperm for artificial insemination. The ECHR finally concluded that the Czech legislation was sufficiently clear, that the applicant had been duly informed and that her case had been thoroughly examined by the national courts. The applicant’s right to conceive a child genetically related to her deceased husband could not be placed above the legitimate general interests protected by Czech law.
Regulation abroad
The problem of dealing with artificial insemination after the death of a partner arises in particular from the fact that this situation is not regulated in the Czech legal system. There is also no uniform approach at European level to the post-mortem handling of cryopreserved biological material. In Belgium and the Netherlands, the use of a deceased man’s sperm is legally permissible under certain conditions. In contrast, this is expressly prohibited by law in Germany, France and Switzerland. In the United Kingdom, the decision on the post-mortem use of biological material lies with the donor, who must specify in advance how his material is to be handled in the event of his death. In Italy, both partners must be alive at the time of fertilisation; however, treatment may continue after the death of one partner under certain circumstances.
The differences between countries concern not only the handling of artificial insemination after the death of a partner, but also access to assisted reproduction. In countries such as France, Italy and Switzerland, the legislation is similar to the Czech regulations: only couples are allowed to undergo artificial insemination. In contrast, other countries allow individuals to undergo artificial insemination on their own. These countries include Germany, the United Kingdom, Denmark and Croatia.
Preservation of human embryos
Artificial insemination often results in the creation of several embryos, not all of which are used immediately. Leftover embryos can be cryopreserved for use in future treatment cycles for the same woman.
Consent to cryopreservation of embryos is not mandatory. The couple can declare in writing that the embryos should not be used for a future IVF cycle and instead consent to their transfer to another infertile couple, their use for research purposes or their disposal.[9] The couple’s written statement may be revoked at any time as long as the use of the embryos is still technically possible, i.e. until they are used by another infertile couple or until they are disposed of.
Embryos that have not been used and for which there is no written instruction from the couple regarding disposal will be stored by the healthcare provider for a period of ten years. After this period, the provider may request the couple in writing to decide on the further storage or disposal of the embryos. If the couple fails to respond to the request, the provider is entitled to dispose of the embryos without further consent.[10]
Transport of human embryos
Within the European Union, the transport of human tissues and cells is subject to strict regulations. The relevant regulations are, in particular, Directives 2004/23/EC and 2006/17/EC, which have been transposed into national law by the Member States, and Regulation 2013/C 68/01 on Good Distribution Practice for Medicinal Products for Human Use. All transport must meet high quality and safety requirements that can only be ensured by specialised and verified facilities.
Each country is subject to its own regulations, which must be observed when transporting human tissues, cells and embryos. In the Czech Republic, transport has been regulated since 2012 by Act No. 296/2008 Coll. on human tissues and cells in conjunction with Regulation No. 422/2008 Coll. The latter sets out detailed requirements to ensure quality and safety, including specific conditions for the cross-border transport of such biological material.
Persons or institutions wishing to transport or import human tissues and cells for further use are subject to a registration requirement. They must apply for a licence from the State Institute for Drug Control. The Institute checks whether the necessary conditions for the safe transport of the respective cells are met and, if so, issues the licence.
It follows that couples are not permitted to transport biological material themselves, as this involves considerable risk. Only specialised companies with the relevant expertise and approvals are available for the cross-border transport of tissues, cells or embryos.
Determination of paternity
If an unmarried woman undergoes artificial insemination, the man who consented to the treatment is considered the legal father of the child.[11] If a married couple undergoes artificial insemination, the mother’s husband is considered the father of the child by law.[12]
For the application of the presumption of paternity, it is irrelevant whether the genetic material used comes from the mother’s partner or husband or from an anonymous donor. This is regulated by Section 787 of the Civil Code, which deals with the denial of paternity in connection with artificial insemination. According to this, paternity cannot be disputed if the child is born between the 160th and 300th day after artificial insemination, regardless of whether the sperm of the consenting man or an anonymous donor was used. At the same time, the provision provides for an exception: it does not apply if the mother became pregnant by other means. This is relevant because a woman who undergoes artificial insemination can theoretically also become pregnant naturally. In such a case, it would be unfair if the man who consented to artificial insemination could not contest his paternity, even though the child was conceived naturally by another man. Proof that the pregnancy occurred naturally can be established by a DNA comparison between the donor registered and the child born.
This is an older but still valid ruling by the Šumperk District Court dated 22nd of October 1987, file number 11 C 121/84. In this case, a married couple decided to undergo artificial insemination, to which both spouses gave their consent. The treatment was to be carried out using donor sperm. However, before signing the consent form, the spouses were not informed that in the event of a divorce they might be obliged to report the treatment to a competent authority or organisation. The marriage was legally dissolved; the spouses had not lived together for four months prior to the divorce and were not in contact with each other. After the divorce, the woman underwent another attempt at artificial insemination, became pregnant and did not inform her ex-husband about the progress of the treatment. At the artificial insemination center, she was repeatedly not asked about her marital status. The ex-husband did not withdraw his original consent to artificial insemination and was unaware that the woman was continuing with the procedure. After the birth of the child, ten months after the divorce, the woman informed her ex-husband in writing and asked him to consent to the naming of the child, to which he finally agreed.
The man then filed a lawsuit to contest paternity on the grounds that the child was born between the 180th and 300th day after artificial insemination. However, in order for him to be considered the child’s father, an essential legal requirement was missing: the consent of the mother’s husband to artificial insemination. At the time of the procedure, the mother’s marriage to the plaintiff no longer existed, so there could be no valid consent from the husband. The husband’s consent is only relevant to the legal consequences of a possible paternity challenge if the artificial insemination and subsequent pregnancy took place during the marriage. Based on these conditions, the lawsuit was upheld.
It follows that in cases of artificial insemination, the presumption of paternity only applies to the mother’s husband if the insemination took place before the divorce. After the dissolution of the marriage, there can be no question of the husband’s consent, as the marriage no longer exists. However, it should be noted that the legislation at the time restricted access to artificial insemination to married couples. Today, unmarried couples also have access to such procedures. The Civil Code now provides for a presumption of paternity not only for the mother’s husband, but also for any man who has consented to artificial insemination. In practice, conflict situations rarely arise, as the IVF Act requires the man’s renewed consent before each individual procedure. Consequently, in practice, it should not happen that a woman becomes pregnant through artificial insemination after separating from her partner without his consent.
The couple’s consent to artificial insemination must not be confused with the parents’ declaration of consent pursuant to Section 779 of the Civil Code. The latter serves to establish the paternity of a child that has already been conceived but is not yet born, whereas consent to artificial insemination is given at a time when the child has not yet been conceived. The six-month period for contesting paternity provided for in Section 790 of the Civil Code therefore does not apply to this consent. The entry of the man in the birth certificate of a child conceived through artificial insemination on the basis of his consent is merely declaratory in nature.
Conclusion
The legal regulation of artificial insemination is based to a large extent on ethical and moral principles. There are currently legal requirements for the basic medical procedure of artificial insemination. However, there is presently no comprehensive case law that could help to clarify outstanding issues. It is to be expected, however, that the topic will not be closed and will be the subject of more intensive discussion in the future, both among experts and among the general public.
[1] Section 3(3)(a) and (b) of the Act.
[2] Section 3 (1) (a) and (b) of the Act.
[3] Section 5 (2) of the Act.
[4] Section 6 (1) of the Act.
[5] Section 8 (1) of the Act.
[6] Section 8 (2) of the Act.
[7] Source here: http://eslp.justice.cz/justice/judikatura_eslp.nsf/0/EA608D9FF6121FC0C12589BF004B88F5/$file/Evans%20proti%20Spojen%C3%A9mu%20kr%C3%A1lovstv%C3%AD_p%C5%99eklad%20vybran%C3%BDch%20%C4%8D%C3%A1st%C3%AD%20rozsudku.pdf?open&
[8] Article 10 of the Covenant, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms
[9] Section 9(1) of the Act.
[10] Section 9 (2) of the Act.
[11] Section 778 CC.
[12] Section 776 (1) CC. Furthermore, the decision of the Supreme Court of the Czech Republic of 12 October 1965, case no. 5 Cz 81/65.