Assisted reproduction or artificial insemination in legal practice

Machine translation

Assisted reproduction, or artificial insemination, is a method that allows couples who have not been able to have children of their own for a long time to do so naturally. The first child to be born this way was a girl, Louise Brown (UK), in 1978. In Czechoslovakia, the first child conceived by artificial insemination was born four years later, in 1982.

Since then, significant progress has been made and assisted reproduction methods have become much more successful and widely used. However, along with the development of medicine, there has also been an evolution in legislation, which has to deal with legal issues such as the regulation of paternity establishment, the provision of consent and its duration by both partners, and the question of the destruction of the biological material taken.

About assisted reproduction in general

The process of assisted reproduction (artificial insemination) is regulated in the Czech Republic by Act No.373/2011 Coll., on Specific Health Services (hereinafter referred to as “SHSS“). There are two different methods of assisted reproduction. The first method consists of the introduction of sperm into the woman’s reproductive organs (intrauterine insemination – IUI) and the second method is based on the transfer of a human embryo created by fertilising an egg with sperm outside the woman’s body into the woman’s reproductive organs (in vitro fertilisation – IVF). [1]

Artificial insemination is used by couples who are struggling with infertility of the woman or man, who have a low chance of getting pregnant naturally or carrying a healthy foetus and for whom other fertility treatments are unlikely to be successful. Another reason for undergoing such a procedure may be to prevent and avoid the transmission of a genetic defect or disease that would endanger the health of the child by early genetic testing of the human embryo.[2] Couples are not allowed to undergo assisted reproduction for the sole purpose of choosing the sex of a future child, unless it is to prevent serious genetically linked diseases.[3]

A woman can undergo artificial insemination only at her fertile age, i.e. up to 49 years. It can only be carried out on the basis of a joint written request by a woman and a man who intend to undergo the artificial insemination process together. Such a request must not be older than 6 months and will always form part of the woman’s medical records as proof. [4] 

Before starting the assisted reproduction process, each couple must be informed by a specialist (doctor) about the nature of the procedure, the permanent consequences and all possible risks, the method of disposing of surplus embryos and the associated financial costs, and the issue of determining paternity of the child born in this way. A witness may also be present at the couple’s request. [5]

After the instruction, both the woman and the man give written consent to the assisted reproduction. The written consent must be given repeatedly before each artificial insemination is performed. [6]

Written consent

It is important to emphasize that the legislation explicitly provides that the requesting couple must declare their consent to artificial insemination both at the time of application and after being instructed by the provider, and then each time before each individual medical insemination procedure.

In the context of consent, the question arises as to the specific moment at which the last consent, i.e. the consent before the medical procedure is performed, should be given. Since the law does not expressly provide for this, the procedure by which artificial insemination occurs in any given case will be decisive for determining the time.

In principle, there will be no problems with consent if the artificial insemination is carried out using the method of introducing germ cells into the woman’s reproductive organs (IUI method). In this case, consent must be given before the introduction of the germ cells can begin. The situation is more complicated with the so-called IVF method. Once the egg in the test tube has been fertilised and the embryo has been created, the resulting embryo must be transferred to the woman’s reproductive organs. The question then arises as to whether the man’s consent is required before the egg is fertilised with sperm or before the embryo is introduced into the woman’s body. As regards the answer to the question of the man’s repeated consent in the process of artificial insemination, it is necessary to look at the traditional situation, namely the man’s ability to influence the conception of the child in the case of natural fertilisation. Once the egg and sperm are united in natural fertilisation, the child is conceived and the man can no longer influence the birth of the child. The same should be true when conception occurs outside the woman’s body. Otherwise, a man who conceives a child naturally would be at a disadvantage compared with a man who takes part in the assisted reproduction process.  However, if the couple decided to freeze the resulting embryo and use it for the purpose of artificial insemination at some future date, here, on the other hand, repeated consent would be used. It is possible that during the period of freezing the embryo, circumstances may change that the couple did not originally anticipate (e.g. end of relationship, death of a spouse/partner, etc.). In this case, it would be unfair if a child is conceived whose father is a person who does not wish to be the father (see below).

Consent to assisted reproduction is also linked to the question of whether consent can be withdrawn at a later date. The law does not explicitly address this issue. We are of the opinion that withdrawal of consent is possible, provided that withdrawal of consent will only have legal effects if the centre carrying out the assisted reproduction becomes aware of it before the act for which the withdrawn consent was given was carried out.

EVANS v United Kingdom judgment

On 10 April 2007, the European Court of Human Rights (“ECtHR“) issued Judgment No. 6339/05[7] , in which it addressed the issue of the right to withdraw consent to artificial insemination. On 12.11.2001 a man and a woman presented themselves at a private clinic, where their eggs and sperm were collected, from which a total of 6 embryos were created. On 26.11.2001, the woman underwent an operation to remove her ovaries and was told to wait at least two years for artificial insemination. However, in May 2002 the couple separated, and in July of that year the man contacted a private clinic to announce the end of the relationship and to request the destruction of the embryos. The woman then claimed that the law, which allowed her to withdraw consent to fertilisation with their shared embryo, infringed, inter alia, her right to respect for private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).

The Grand Chamber of the ECtHR unanimously concluded that there had been no violation of Article 2 of the Convention – the right to life, since the question of when the right to life begins fell within the State’s discretion and embryos created by artificial insemination did not have a right to life. Further, the Court held that there had been no violation of Article 8 and Article 14 read in conjunction with Article 8 of the Convention, as the right to private life included the right to respect both the decision to become a parent and the decision not to become a parent. The Court did not consider that the applicant’s right to respect the decision to become a parent should be given greater weight than the right to respect the man’s decision not to have a child genetically related to her.

Judgment A and B v France

Another judgment dealing with the question of recognition of paternity in respect of a child conceived without the father’s consent by means of assisted reproduction from a foreign donor is ECHR judgment of 08 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 in the context of assisted reproduction, which failed. In September the partners entered into marriage, but on 3 May 2013 they filed for divorce. On 12 May 2013, the mother underwent another attempt to implant an embryo from an anonymous donor. In June 2013 the marriage was dissolved and in December 2013 the mother gave birth to a daughter. The mother’s ex-husband at the time was recognised as the father by the local court. He then filed a petition in 2015 to annul the paternity recognition because the child was conceived at a time when he and the mother were no longer a couple, and he did not give repeated consent to a further attempt at assisted reproduction carried out in May. The father’s motion was subsequently granted. However, the mother argued before the ECtHR that the annulment of the recognition of paternity violated their daughter’s rights under Article 8 of the Convention, the right to respect for family and private life.

The court concluded that in the present case it was clear that the husband was not the biological father of the child. The fact that he had initially consented to assisted reproduction did not mean that such consent would be irrevocable in the future. At the time of the child’s conception, the mother and her husband were not living together (the mother had even lived in Cuba and subsequently returned to France, when she no longer maintained any relationship with her husband) and, moreover, the application for the annulment of paternity was lodged when the child was only 14 months old. The court found, on the contrary, that the child would thus be able to establish his true biological parentage. It is not in the best interests of the child to maintain a relationship with a man who is not and does not want to be the child’s father. The Court therefore concluded that there had been no violation of the child’s right to respect for his private life within the meaning of Article 8 of the Convention.

Assisted reproduction in the event of the death of one of the couple or a foreign donor

Due to the necessity of repeated consent of the couple before each artificial insemination procedure, there is no doubt about the couple’s willingness to undergo the medical procedure. However, how should a health care provider proceed if one of the couple has died? Is the death of the partner an automatic reason for not allowing the next artificial insemination procedure? And what if the deceased partner declared during his lifetime that he agreed to the use of his cryopreserved sperm for further artificial insemination of his partner in the event of his death?

Ruling of the Constitutional Court Case No. I. ÚS 1099/18 of 08.11.2018

This finding deals with the case of a woman complainant who, together with her husband, decided to undergo artificial insemination. The husband had signed an informed consent for cryopreservation of sperm and he and his wife subsequently signed an informed consent for treatment of infertility by the method of ectopic insemination. They also consented to the thawing and use of sperm for infertility treatment in the future. Unfortunately, the complainant’s husband died shortly after the commencement of the treatment and for some time after her husband’s death the complainant was unable to continue the treatment for psychological reasons. However, when the complainant decided to complete the IVF process, the clinic did not allow her to do so due to the lack of valid consent from her husband.

The plaintiff then sought to allow the treatment to be completed, since, in her view, her husband had consented to impregnation of his wife with his frozen sperm before his death, had never withdrawn his consent, and refusal to carry out the treatment would not respect his wish to procreate with his wife, as confirmed by that consent. The applicant further argued that the completion of the treatment would not cause any prejudice to the rights of others and that, on the contrary, failure to complete the treatment would constitute an interference with the applicant’s right to private and family life.[8]

The courts concluded the case on the basis that the law only allows couples to undergo artificial insemination and that if the complainant was no longer living in a couple, she could not have requested artificial insemination herself. Although the husband’s consent to the artificial insemination was given at the beginning of the treatment, his further willingness to do the same cannot be anticipated and replaced by the court’s consent. In fact, artificial insemination is permitted in law only between the living and there is no regulation of the procedure after the death of the partner, nor can it be inferred in any way by interpretation. Moreover, the purpose of artificial insemination is to “treat infertility” with which an “infertile couple” is treated. Thus, in the view of the courts, the death of the husband terminates the couple as such, and hence the infertility of the couple can no longer be inferred and its infertility cannot be treated. In its reasoning, the Supreme Court also pointed out that the applicant was not deprived of the possibility of becoming a mother by refusing to complete her treatment, she was merely no longer able to procreate a child with her deceased husband. The Supreme Court also took into account the wording of the husband’s consent to the cryopreservation of the sperm, since it contained a provision that in the event of the husband’s death the frozen biological material would be destroyed. According to the court, the consent to this provision casts doubt on the deceased husband’s actual intention to become a father after his death. Moreover, the informed consent to artificial insemination given by the couple at the beginning of the treatment is, according to the law, granted for a period of six months. This is also the reason why the clinic refused to complete the artificial insemination process for the complainant as the consent had already expired at the time of her request. However, on the basis of the aforementioned provision on the destruction of biological material in the event of death, it was no longer even necessary to consider the six-month validity period, as the sperm could not be used for fertility treatment at any time after the death of the husband.

Constitutional Court Judge David Uhlíř dissented from the ruling. In his opinion, the decision of the courts is erroneous because it is based on a wrong interpretation of the law and on a failure to respect the wishes of the deceased or the complainant. According to the judge, conceiving a child is a sovereign private right of a man and a woman, which is protected as a free decision as part of the right to private life, and the state should not interfere with it. If a couple is unable to conceive naturally and uses assisted reproduction methods to conceive, the legal regulation of such a procedure and its limitations must be interpreted in such a way that the essence and meaning of fundamental rights and freedoms are preserved and that the limitations are not abused for purposes other than those for which they were established. According to such an application of the law, then, preventing the completion of the treatment on the ground of the expiry of the period for which consent to the husband’s artificial insemination was provided for appears to be inconsistent, since the purpose of the consent was, in the judge’s view, to prevent conception without the husband’s consent, not to prevent the completion of the treatment after his death. Constitutional Court Judge David Uhlir also drew attention to the inequality that had occurred. It does not follow from the provisions of the law, nor is it explicitly stated anywhere, that the use of frozen sperm for assisted reproduction after the death of its donor is excluded. In the case of an anonymous donation, the clinic does not verify whether or not the anonymous donor is still alive. So why should the situation be less favourable for the non-anonymous donor? If there is no legal regulation excluding the use of sperm after the death of the donor, in the opinion of Constitutional Court Judge David Uhlir, the deceased’s actual wishes should be established by the courts. However, the determination cannot be based solely on the pre-printed wording in the informed consent.

Judgment of the ECtHR of 08.12.2022, Pejřilová v. Czech Republic

The complainant appealed to the European Court of Human Rights against the above-mentioned ruling of the Constitutional Court, again alleging an interference with the right to respect for her private and family life guaranteed by Article 8 of the Convention. However, the ECtHR sided with the decision of the Constitutional Court and found no violation of Article 8 of the Convention. It found that the courts had acted in accordance with Czech law in not allowing the complainant to be impregnated with her deceased husband’s sperm. In the ECtHR’s view, the requirement of consent to assisted reproduction is legitimate and such consent cannot be substituted for a court decision in the event of death, let alone when the deceased has signed a consent to the destruction of biological material in the event of death. It also agreed with respecting the condition that only a couple whose consent is less than six months old should undergo assisted reproduction, as this is a condition imposed in the general interest, which is legitimate. The ECtHR therefore found the Czech legislation to be in conformity with Article 8 of the Convention. This article itself provides a certain margin of discretion from which, however, the legislators cannot withdraw. However, even at European level, there is no consensus on whether to allow a widow to use her deceased husband’s frozen sperm by assisted reproduction. Finally, the ECtHR concluded that the Czech legislation was sufficiently clear, the complainant had been made aware of it and her case had been thoroughly examined by the Czech courts. The complainant’s right to conceive a genetically related child with her deceased husband cannot be placed above the legitimate general interests protected by Czech law. 

Foreign adjustment

The problem with the question of how to approach assisted reproduction after the death of a partner stems mainly from the fact that this situation is not regulated in any way in the Czech legal system. However, even in Europe, there is no consensus among states on the post-mortem treatment of this biological material. In Belgium and the Netherlands, for example, the use of a deceased man’s semen is legally possible under certain conditions. The opposite approach is applied in Germany, France and Switzerland, for example, where it is directly prohibited by law. The approach in the United Kingdom is less clear-cut, where the choice is given directly to the provider of the biological material, who is always required to declare how his biological material is to be handled in the event of his death. In Italy, both partners are required to be alive at the time of fertilisation of the egg, but treatment can continue after the death of the partner.

The differences between countries are not only in the regulation of the treatment procedure after the death of a partner, but also the access to assisted reproduction itself is regulated differently. In some countries, such as France, Italy and Switzerland, the legislation is identical to ours, i.e. only couples can undergo assisted reproduction. However, there are also countries where an individual can undergo assisted reproduction alone. Such countries include Germany, the United Kingdom, Denmark and Croatia, among others.

Preservation of human embryos

In the case of artificial insemination, it is possible that not all the human embryos created for the purpose of insemination will be used. It is then possible to preserve such embryos and use them for the next possible artificial insemination of the woman.

However, consent to the preservation of these embryos is not obligatory and the couple may declare in writing that they do not intend to use these embryos for their next IVF procedure and consent to their use for another infertile couple, or to their use for research or disposal.[9] This declaration can be revoked at any time by the couple, as long as it is still technically possible, i.e. until the time of use by another infertile couple or until the time of disposal.

Embryos that have not been used and for which the couple has not made a written declaration of disposal shall be stored by the health care provider for ten years. At the end of the 10 years of storage, the provider may invite the couple in writing to comment on the continued storage of these embryos, including consenting to their disposal. Should the couple repeatedly fail to respond, the provider is entitled to dispose of the embryos without the couple’s consent. [10]

Transporting an embryo abroad

Within the European Union, the transport of human tissues and cells is very strictly regulated by directives. In particular, the transport of human tissues and cells is governed by Directives 2004/23/EC and 2006/17/EC, which have been incorporated into the individual Member States’ legislation, as well as by European Regulation 2013/C 68/01 on Good Distribution Practice for Medicinal Products for Human Use. Any transport must meet high quality and safety standards which can only be ensured by specialised and vetted bodies.

Each country then has its own legislation that must be complied with during transport. In the Czech Republic, the transport of human tissues, cells and embryos has been regulated since 2012 by Act No. 296/2008 Coll., on Human Tissues and Cells, together with Decree No. 422/2008 Coll., on the establishment of more detailed requirements for ensuring the quality and safety of human tissues and cells intended for human use, which regulates more detailed conditions for the transport of such biological material abroad.

According to the law, anyone who would like to transport/import human tissues and cells for further use is subject to the registration obligation, i.e. they must apply for a licence from the State Institute for Drug Control. This institute will check whether the necessary requirements for the transport of these special cells are met and grant a licence.

It follows from the above that it is not possible for a couple to transport any of their biological material themselves as it is very risky. There are many companies that specialise in transporting tissues, cells or embryos around the world.

Determination of paternity

If an unmarried woman undergoes assisted reproduction and conceives a child, the man who gave consent to the artificial insemination is deemed to be the father of the child.[11] If a married couple undergoes assisted reproduction, the father of the child is presumed by law to be the husband of the mother.[12]

It is not decisive for the application of the presumption of paternity whether the genetic material used comes from the mother’s partner or husband or from an anonymous donor. This is reflected in the provisions of section 787 of the Civil Code, which contains a denial of paternity in the case of artificial insemination. It provides that if a child is born between the one hundred and sixtieth day and the three hundredth day after artificial insemination, paternity cannot be denied. It is irrelevant whether the sperm of the man who consented to the artificial insemination or that of the donor was used. At the same time, however, the provision in question adds that this does not apply if the mother of the child has otherwise become pregnant. It is possible that a woman who undergoes assisted reproduction may eventually become pregnant naturally. In such a case, however, it would be unfair that a man who has consented to assisted reproduction should not be able to deny his paternity even though he knows that his partner has become pregnant naturally with another man. The fact that the mother of the child became pregnant otherwise than by assisted reproduction can be proved by comparing the DNA of the donor registered in the sperm donor register with the DNA of the child born.

This is related to an older, but still valid, judgment of the District Court in Šumperk of 22 October 1987, Case No. 11 C 121/84.  The couple decided to undergo artificial insemination, to which both spouses gave their consent. The artificial insemination was to be carried out using donor sperm. However, before signing the consent to the artificial insemination, the spouses were not informed that, should the marriage be dissolved, they were to report that fact to an institution or other body. The marriage had been finally dissolved and the spouses had not shared a common household or had no contact with each other for four months prior to the divorce. After the divorce, the wife had undergone another attempt at artificial insemination and had become pregnant without informing her ex-husband. She was repeatedly not asked about her marital status at the artificial insemination centre. After the divorce, her ex-husband did not withdraw his consent to assisted reproduction and was unaware that the woman was continuing the artificial insemination process. After the child was born, the woman notified her ex-husband of this fact by letter and requested that he consent to the name of the child, which he did in the consent to assisted reproduction. The child was born 10 months after the dissolution of the marriage.

The man therefore brought an action in court to deny paternity, stating that the minor defendant was born between 180. and 300 days after the artificial insemination, but in order for the plaintiff to be the father of the minor, the condition required by law, i.e. the consent of the mother’s husband to the artificial insemination, was lacking, since at the time of the artificial insemination the mother’s marriage to the plaintiff was no longer in existence. Therefore, there could not have been consent on the part of the mother’s husband. The consent of the mother’s husband to her artificial insemination is relevant to the consequences for the possibility of denying paternity only if the artificial insemination and the subsequent pregnancy of the mother of the child took place during the marriage and not after the dissolution of that marriage. The action was upheld by the court.

Therefore, it can be concluded that the presumption of paternity in assisted reproduction will only apply to the mother’s husband if the insemination takes place before the divorce. If the marriage has been dissolved, we cannot speak of the consent of the mother’s husband as there is no husband. However, it should be pointed out that the legislation at that time envisaged that only married couples and not unmarried couples could undergo assisted reproduction. Today, access to assisted reproduction is also available to unmarried couples, and the Civil Code establishes a presumption of paternity not only for the mother’s husband but also for any other man who has consented to assisted reproduction. In practice, however, these situations do not arise, as the IVF Act requires the man’s consent before any procedure is carried out. Therefore, in practice, it should not occur that a woman is impregnated by assisted reproduction after separating from her partner, as the law requires his consent again before every single procedure.

The couple’s consent to artificial insemination cannot be confused with the parents’ declaration of consent, which is provided for in Section 779 of the Civil Code. On the basis of this declaration, paternity of the unborn but already conceived child is established, whereas consent to artificial insemination is given at a stage when the child has not yet been conceived. Therefore, the six-month limitation period laid down for denying paternity in Article 790 of the Civil Code does not apply in the case of such consent. The entry of a man in the birth certificate of a child born of artificial insemination on the basis of the man’s consent to the artificial insemination is only declaratory.

Conclusion

The legal regulation of assisted reproduction or artificial insemination is based heavily on ethical and moral rules. At present, we have legal regulations governing the basic medical procedure of artificial insemination. However, we still lack more comprehensive case law that would help to shed light on some of the issues that have not yet been resolved. However, we believe that this is not a “dead” topic and we can expect a broader discussion on this topic in the future, not only among the professional but also among the general public.

JUDr. Kateřina Valdecká, Advocate
Julie Králová, legal assistant


[1] § 3(3)(a) and (b) of the SHSA.

[2] § 3(1)(a) and (b) of the SHSA.

[3] § 5 (2) of the Act.

[4] § 6 (1) of the Act.

[5] § 8 (1) of the Act.

[6] § 8 (2) of the Act.

[7] Zdroj zde: 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] § 9 (1) of the Act.

[10] § 9 (2) of the Act.

[11] § 778 CC.

[12] § 776 (1) CC. Furthermore, the decision of the Supreme Court of the Czech Republic of 12 October 1965, Case No. 5 Cz 81/65.

You may also be interested in

A special property regime between the spouses – the so-called community of property – is created upon marriage. This special…

Consumer information

The Czech Bar Assotiation has been authorised by the Ministry for Industry and Trade of the Czech Republic for the extrajudicial resolution of disputes between attorneys-at-law and consumers in connection with contracts on legal services which are affected by the Act No. 634/1992 Coll., on the protection of the consumer.

The website of the Czech Bar Association is available at www.cak.cz