Medically assisted procreation
Right to dignity
Right to life
Right to physical and psychological integrity
RULING No. 101/2009
Case no. 963/06
Rapporteur: Justice Carlos Fernandes Cadilha
Ruling of the Constitutional Court sitting in Plenary
I – Report
1. Under the terms of Article 281(1)(a) and (b) and (2)(f) of the Constitution of the Portuguese Republic (CRP) a group of thirty-one Members of the Assembly of the Republic asked the Court to declare Law no. 32/2006 of 26 July 2006 (Law governing medically assisted procreation) illegal and unconstitutional with generally binding force, on the grounds that the Law is formally unconstitutional and in breach of the Organisational Law governing Referenda, and that a number of its norms are materially unconstitutional.
They offered the following grounds for their request:
Decree of the Assembly of the Republic no. 64/X (which gave rise to Law no. 32/2006 of 26 July 2006, which in turn regulated medically assisted procreation) was put to a final overall vote at around 6 p.m. on 25 May 2006.
At 9.30 a.m. on the same day the President of the Assembly of the Republic received a petition containing a popular initiative calling for a referendum. This petition was subscribed by more than seventy-nine thousand citizens and asked for a referendum to held on the Law that was then being debated by the Assembly of the Republic. It was submitted under the terms of Articles 115(2) and 167 of the Constitution and 4(1) and 16 to 22 of the Organisational Law governing Referenda (LOR).
The Assembly of the Republic voted on the Law. In the opinion of the petitioners, this constituted both a failure to consider the popular petition which had already been handed in to it, and a declaration that popular referendum initiatives can be denied by the final overall vote on a law, irrespective of the moment in time at which the initiative is submitted.
The LOR does not lay down the immediate consequences which the handing in of a popular petition has for the legislative process. However, given that what is at stake is an initiative whose object concerns a legislative act that is in the process of being considered, the handing in of the petition should always have the effect of suspending the aforesaid process, failing which the petition would become useless.
Failure to suspend the legislative procedure until the decision on a popular referendum initiative is taken does away with an instrument for participatory democracy that is founded in the Constitution, and in this case did so as a consequence of a parliamentary agenda which the petitioners did not control. Such a situation suffers from formal unconstitutionality, inasmuch as it is in breach of Article 115 of the Constitution; and is unlawful, because it breaches Articles 4 and 17 to 22 of the LOR.
Moreover, the legislative act that is questioned in the present request was sent to the President of the Republic for enactment immediately after the final version of the legal text was established (on 23 June 2006), before the deadline for Members of the Assembly of the Republic to challenge the final text (by the end of the third legislative session following passage). This breached the provisions of Articles 166 and 167 of the Rules of Procedure of the Assembly of the Republic.
Law no. 32/2006 also suffers from various problems of material unconstitutionality, and from breaches of both the Convention on Human Rights and Biomedicine (Oviedo Convention) and the Universal Declaration of Human Rights (UDHR), which, under Article 8 of the Constitution, form part of the Portuguese legal order.
Article 4(2) accepts the possibility of resorting to medically assisted procreation (MAP) for the purposes of selection and/or eugenics, and permits the triage of human embryos in accordance with morphological or genetic characteristics and in order to achieve unidentified purposes (to avoid the “transmission of illnesses with a genetic or infectious origin or other illnesses”). It is not possible to accept that this norm might serve as a pretext, for example, for choosing the sex of descendants. The precept in question breaches the provisions of Articles 24, 25, 26(3) and 13(1) of the Constitution, as well as Articles 1 and 2 of the Oviedo Convention.
Article 6 fails to impose a maximum age limit for resorting to MAP techniques and accepts, for example, that a woman might have a child at the age of 67. Practically all western European legislations set limits on the age of those who can resort to MAP, and the most liberal of them only extend to the age at which women cease to be fertile. Like the provisions of the legal rules governing adoption (Articles 1974 and 1979 of the Civil Code), the future relationships should be ones of filiation, with a view to fulfilling the superior interest of the child – an interest which must not be ignored because of a personal desire to be a mother at any cost. Article 6 of Law no. 32/2006 breaches Articles 25, 26, 64, 67(2)(e), 68 and 69 of the Constitution, as well as Articles 1 and 2 of the Oviedo Convention. The fact is that MAP must be targeted at protecting the family, in terms that safeguard the dignity of the human person, while bearing in mind both the inviolability of human life and integrity, and personal identity.
Articles 7(3) and 30(2)(q) accept the possibility of the creation of medicine-embryos, thereby turning the human embryo into an instrument and breaching both Articles 24, 25, 26, 67 and 68 of the Constitution, and Articles 1 and 2 of the Oviedo Convention.
Articles 9(2) to (5) and 30(2)(e) and (g) are in conflict with the provisions of Articles 24, 26, 68 and 69 of the Constitution and Articles 1, 2, 11, 14, 15 and 18 of the Oviedo Convention.
Article 10 provides for the possibility of resorting to sperm banks and the donation of oocytes, thereby permitting the existence of children of unidentified biological mothers or fathers. This provision is in conflict with those of Articles 36(4), 25(1) and 26(1) of the Constitution, and goes against the constitutional jurisprudence that recognises the existence of a fundamental right to know who one’s parents are and to have that paternity acknowledged, inasmuch as this represents an essential point of reference for any person (Rulings nos. 99/98, 413/89, 451/89, and 370/91). It also contradicts the legal theorists who argue that the right to identity includes the right to a personal history (Gomes Canotilho and Vital Moreira).
Article 10 also attacks women’s dignity, given that it is a simple thing to place an (albeit invisible) commercial stamp on the collection of oocytes. Aware of this fact, on 22 January 2006 the European Parliament’s Committee on Women’s Rights and Gender Equality unanimously passed a recommendation to all the European Community countries that they should create laws to fight this scourge, which condemns women to exploitation. There are well-known cases of women dying due to ovarian hyperstimulation (the process that permits the collection of oocytes). The legal precept in question is in breach of Articles 9(d), 24, 25, 26, 36, 64 and 67 of the Constitution, and of all the provisions of the UDHR and the Oviedo Convention.
Article 15(1) to (4) breaches the provisions of Articles 9(d), 13(2), 25(1), 26(1) and 36(4) of the Constitution. An individual who is born with resort to heterologous procreation is prevented from enjoying the possibility of knowing his or her medical antecedents. His/her rights are thus diminished and he/she is rendered unable to use preventive medicine – resorting to a lawsuit in order to obtain that information is not compatible with the need for urgent medical treatment. Bearing in mind that everyone who intervenes in a MAP process is under a duty of secrecy, a person who is conceived via this technique does not even have a way to suspect that his/her real identity does not match that declared on his/her birth certificate. This circumstance is even more serious given that there is no legal limit on the number of inseminations which the same donor can provide and, in a country with ten million inhabitants, the risks of consanguinity are evident.
Articles 19, 20, 21 and 27 subject a person’s right to know his/her parentage to the will of others, and this contradicts the constitutional jurisprudence set out in Ruling no. 413/89. Article 20(5) of Law no. 32/2006 means that paternity is derived from an obligational business relationship, and it is possible to discuss a whole range of vices and forms from which the declaration in question suffers; and the same Article is in conflict with the provisions of Article 6, when it accepts the possibility of procreation by the decision of a single progenitor, thereby opposing the principle of the superior interest of the child and the latter’s protection, with a view to his/her full development, as laid down in Article 68 of the Constitution. Article 35 of Law no. 32/2006 does not provide for any sanction for the breach of the principle of dual parentage, and is in conflict with the provisions of Articles 25, 26, 36(4) and 68 of the Constitution.
Articles 24 and 25 establish the principle of the discretionary creation of embryos by the exercise of medical/scientific power. But the embryos that are created have a father and a mother, who possess the constitutional rights of motherhood and fatherhood enshrined in Article 68 of the Constitution. In this matter it is necessary to honour the primacy of the human being over science, and we must bear in mind the examples of countries such as Germany, Austria, Italy and Ireland, which do not permit the creation of excess embryos. The implantation of more than one embryo in a human uterus also raises public health issues, inasmuch as it is scientifically proven that multiple pregnancy is a factor that worsens the risk of malformation of the foetus. We believe that the aforementioned precepts are not in conformity with the provisions of Articles 64 and 67(2)(e) of the Constitution, or with those of Articles 1, 2, 11, 14 and 18 of the Oviedo Convention.
The preimplantation genetic diagnosis provided for in Articles 28 and 29 is designed to produce human beings who are selected in accordance with predetermined qualities, and this constitutes a manipulation that is in opposition to human dignity, integrity and identity. What is more, the parliamentary legislators did not wait for the National Council on Ethics for the Life Sciences (CNECV) to pronounce itself on this question (the Council is currently in the process of drawing up an opinion on this subject), thereby failing to consider the legal competences attributed to CNECV by Law no. 14/90 of 9 June 1990, as amended by Executive Law no. 193/99 of 7 June 1999 and Laws nos. 9/2003 of 13 May 2003 and 6/2004 of 26 February 2004. We believe that the two aforementioned precepts are not in harmony with the provisions of Articles 25, 26, 67 and 68 of the Constitution, or with those of Articles 11 to 14 of the Oviedo Convention.
Article 36 accepts the possibility that reproductive cloning related to MAP may not be the object of sanctions. Despite the fact that the Law says that reproductive cloning is prohibited, engaging in it has no effect on the person responsible for the infraction. However, reproductive cloning is forbidden throughout the western world and wherever the rule of law prevails. The Additional Protocol to the Oviedo Convention, on the Prohibition of Cloning Human Beings, and Article 11 of the 1997 Universal Declaration on the Human Genome and Human Rights both prohibit reproductive cloning. The precept in question here is in breach of these international instruments (which constitute internal law), and of Articles 8, 9, 64 and 68 of the Constitution.
Article 39 only sanctions paid surrogate maternity, and says nothing about unpaid arrangements (which Article 8 does not permit). This lack of a sanction reveals a permissive attitude towards the business of surrogate maternity, represents a danger to the dignity and other rights of the human being, and constitutes a fraud against the law, inasmuch as it is in conflict with Articles 25, 26, 67 and 68 of the Constitution and all the provisions of the Oviedo Convention.
2. Following the notification referred to in Article 54 of the Law governing the Constitutional Court, the Assembly of the Republic replied by sending the Court a copy of the issues of the Diário da Assembleia da República in which the preparatory work for Law no. 32/2006 was published, together with the opinions and other documentation concerning the detailed procedure followed in relation to the referendum petition received on 25 May 2006. In summary, the Assembly provided the following clarifications:
On 25 May 2006, the representatives of a group of 78,333 registered electors delivered a petition to the Assembly of the Republic, asking for the holding of a national referendum on medically assisted procreation.
On the same day, the text which the Health Committee had drawn up (a process that was concluded on 22 May 2006) on the Member’s bills on medically assisted procreation that had been submitted by the BE, the PS, the PCP, and the PSD, was put to a final overall vote and was passed. Before that vote, the CDS-PP moved that the vote be delayed for one week, but the motion was rejected by the combined votes of the PS, the PCP, the BE and the PEV, with the PSD, the CDS-PP and one Member of the Assembly of the Republic from the PS voting in favour.
The petition was sent to the Health Committee on 26 May 2006. On 8 June 2006 the Committee issued an opinion in which it expressed doubts as to the admissibility of the petition and asked the President of the Assembly of the Republic to send the file to the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, so that the latter might pronounce itself on this question. On 12 June 2006 the petition was sent to the Constitutional Affairs Committee, which issued an opinion on 21 June 2006 in which it concluded that the popular referendum initiative did not comply with the provisions of Article 17(4) of the Organisational Law governing Referenda. On 22 June 2006 the President of the Assembly of the Republic sent this opinion to the Health Committee, which, on 27 June 2006, in turn issued an opinion in which it concluded that the petition was illegal and should not be admitted.
On 28 June 2006 the President of the Assembly of the Republic notified the representatives of the registered electors who had subscribed the petition that, should they wish to do so, they should perfect the petition and submit a Member’s bill on the matter that they wanted to see put to a referendum (Order no. 102/X). On 29 June 2006, two Members of the Assembly of the Republic from the PCP appealed against this Order, arguing that, according to the opinions issued by the Constitutional Affairs Committee and the Health Committee, the petition ought not to be admitted. This appeal was forwarded to the Constitutional Affairs Committee which, on 4 July 2006, issued an opinion in which it concluded that the appeal should be denied. This opinion was put to the vote in Plenary on 5 July 2006, and was passed by the combined votes of the PS, the PSD and the CDS-PP, with the PCP, the BE and the PEV voting against.
On 10 July 2006 the petition’s agents delivered a Member’s bill seeking to regulate medically assisted procreation techniques to the Assembly of the Republic.
Following this perfecting process, on 18 July 2006 the President of the Assembly of the Republic admitted the popular referendum initiative and sent it to the Health Committee for the purposes provided for in Article 20(5) and (6) of the Organisational Law governing Referenda. In the meantime the Assembly adjourned for the summer. Once the following legislative session had begun, on 26 September 2006 the Committee heard the representatives of the registered electors who had subscribed the petition.
The draft resolution that included the text of the referendum initiative (no. 159/X/2) was delivered to the President of the Assembly of the Republic on 6 October 2006, was announced in Plenary on 19 October 2006, and was published in Series II-A of the Diário da Assembleia da República on 21 October 2006.
Draft resolution no. 159/X/2 was considered on 15 November 2006 and was put to the vote in a plenary sitting on 16 November 2006, when it was rejected. The PS, the PSD, the BE and the PEV voted against; the CDS-PP, two Members of the Assembly of the Republic from the PS and one from the PSD voted for; and one Member from the PS abstained (see Series I of the Diário da Assembleia da República dated 16 and 17 November 2006).
3. Now that the memorandum referred to in Article 63(1) of the Law governing the Constitutional Court has been drawn up and the Court’s guidelines have been set, the Court must decide.
II – Grounds for decision
4. The petitioners begin by arguing that there are two formal defects which could affect Law no. 32/2006 and which we should consider first: (a) the non-suspension of the legislative process as a result of the submission of a popular referendum initiative; and (b) failure to respect the period of time which the Rules of Procedure of the Assembly of the Republic give Members of the Assembly in order to challenge the final version of a legislative text before it is sent to the President of the Republic for enactment.
a) The popular referendum initiative
The origins of Law no. 32/2006 of 26 July 2006, which regulated medically assisted procreation, thereby seeking to fulfil the specific duty to regulate the matter in question set out in Article 67(2)(e) of the Constitution of the Portuguese Republic, are to be found in Member’s bills no. 141/X (submitted by the Left Bloc – BE), no. 151/X (Socialist Party – PS), no. 172/X (Portuguese Communist Party – PCP), and no. 176/X (Social Democratic Party – PSD).
The bills were discussed on 21 October 2005, and their general principles were passed on the following 10 November (Series I of Diário da Assembleia da República no. 58, dated 22 October 2005, pp. 2641-2657, and of no. 60, dated 11 November 2005, pp. 2823-2824). The final overall vote on a text drawn up by the Parliamentary Committee on Health was scheduled for the plenary sitting on 25 May 2006, which was due to begin at 3.10 p.m.
At 9.30 a.m. on that very day the President of the Assembly of the Republic received a popular petition. The citizens who signed it “proposed to the Assembly of the Republic that a national referendum be held on the questions involved in medically assisted procreation”. They also submitted three draft questions, which were linked to Member’s bills nos. 141-X, 151-X, 172-X, and 176-X, which were then under consideration by the Assembly of the Republic: “1) Do you agree that the law should permit the creation of more human embryos than the number which are to be immediately transferred to the mother in a single operation? 2) Do you agree that the law should permit the creation of a child without a biological father and a mother who are united with one another in a stable relationship? 3) Do you agree that the law should allow the resort to surrogate motherhood, thereby permitting the gestation in a woman’s uterus of a child who is not biologically hers?”
In the wake of this initiative the CDS-PP asked that the vote be delayed for one week, but its motion was rejected by the combined votes of the PS, the PCP, the BE, and the PEV, as opposed to the favourable votes of the PSD, the CDS-PP and one Member of the Assembly of the Republic from the PS (Series I of Diário da Assembleia da República no. 127, dated 26 May 2006, p. 5859).
The final text from the Health Committee was then put to the vote and passed with votes in favour from the PS, the PCP, the BE, the PEV, and eight Members of the Assembly of the Republic from the PSD; it was nonetheless opposed by the PSD, the CDS-PP, and three Members from the PS; twenty-one PSD Members abstained (ibid).
The referendum process was only followed up afterwards, and culminated in the rejection of Draft Resolution no. 159/X at the plenary sitting on 16 November 2006. This draft sought to approve the holding of a national referendum, but was defeated by the votes of the PS, the PSD, the PCP, the BE, and the Greens, despite the favourable votes of the CDS/PP, one Member of the Assembly of the Republic from the PSD, and two from the PS (Series I of Diário da Assembleia da República no. 21, dated 17 November 2006, p. 86).
In the light of these facts the petitioners question the formal validity of Law no. 32/2006. They consider that the mere handing in of a popular referendum initiative ought to lead to the suspension of the legislative procedure. In their opinion this can constitute both a formal unconstitutionality, because it breaches the provisions of Article 115 of the Constitution, and an illegality, due to a breach of the Organisational Law governing Referenda, which the petitioners believe to be a law that possesses superior legal force.
So this is the first question we must elucidate.
Paragraph (1) of Article 115 of the Constitution of the Republic states that “Upon a draft submitted by the Assembly of the Republic or the Government in relation to matters that are within their respective competences, in the cases provided for in, and as laid down by, the Constitution and the law, the President of the Republic may decide to call upon citizens who are registered to vote in Portuguese territory to directly and bindingly pronounce themselves by referendum”. Paragraph (2) adds that “Referenda may also result from the submission by citizens of an initiative to the Assembly of the Republic. Such initiatives shall be submitted and considered under the terms and within the time limits laid down by law.”
In harmony with the provisions of Article 115 and under the heading “Initiative in relation to law and referenda”, Article 167(1) says that “The power to initiate law and referenda lies with Members of the Assembly of the Republic, parliamentary groups and the Government, and also, under the terms and conditions laid down by law, with groups of registered electors”; while Article 197(1)(e) also grants the Government the ability, acting within the framework of its political competences and “In accordance with Article 115, to propose to the President of the Republic that matters of important national interest be subjected to referendum”. In all these cases it is the President of the Republic who has the competence to decide whether to call a referendum (Article 134c).
In implementing all these principles, the Organisational Law governing Referenda (LOR), which was itself approved by Organisational Law no. 15-A/98 of 3 April 1998 (subsequently amended by Organisational Law no. 4/2005 of 8 September 2005), distinguishes between Assembly of the Republic draft referenda, the initiative for which can be taken by Parliament, the Government, or citizens, on the one hand, and Government draft referenda, which arise out of a specific competence which the Government exercises when it wants to submit a referendum initiative directly to the President of the Republic, on the other (see Articles 10, 14, 16 and 36and ).
It is in the light of this legal criterion that we must interpret the norm set out in Article 4(2) of the LOR when it says: “If the Assembly of the Republic or the Government submits a draft referendum on an international convention which has been submitted for consideration or on a Member’s or government bill, the respective proceedings shall be suspended until the President of the Republic decides whether to call the referendum, and, in the event that he does call it, until it is held”.
In this context it is easy to understand that the act of submitting the draft referendum referred to by the aforementioned precept is not that of submitting the popular referendum initiative to the Assembly of the Republic, but rather that of the submission of the draft referendum by the Assembly of the Republic or the Government to the President of the Republic. In effect, the popular referendum initiative enshrined in Articles 115(2) and 167(1) of the Constitution is addressed to the Assembly of the Republic, which organ of sovereignty can reject or pass it (Articles 16 and 21 of the LOR); and it is out of this passage of a popular initiative by the Assembly of the Republic that the draft referendum which is subsequently submitted to the President of the Republic for consideration is born.
So it is important not to confuse the initiative in relation to a referendum (which lies with the Assembly of the Republic, with the Government, and with Portuguese registered electors) on the one hand, with the draft referendum (which only the Assembly of the Republic and the Government have the competence to pass) on the other. It is to the submission of the latter – the draft referendum – to the President of the Republic that Article 4(2) of the LOR attributes the effect of suspending an ongoing legislative procedure.
As such, the delivery of a popular referendum initiative to the Assembly of the Republic does not suspend the legislative procedure. This suspensive effect could only result from the subsequent act of submitting the draft referendum to the President of the Republic if, in the meantime, the Plenary of the Assembly of the Republic had passed the draft resolution incorporating the popular initiative.
In our constitutional system the referendum is thus an instrument for “semi-direct” democratic participation (Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 7th edition, Coimbra, 2003, pp. 294-298) that must be conjugated with the specific mechanisms applicable to representative democracy. In other words, it must receive the approval of the directly elected organs of sovereignty: the Assembly of the Republic, which votes to submit the draft referendum to the President of the Republic, and the President of the Republic himself, who takes the decision whether or not to submit the question or text concerned to referendum.
This is also what Jorge Miranda explains in detail when he says that the “referendum initiative referred to in Article 115(2) is no more than a pre-initiative, because it has to be taken up by the Assembly” (Jorge Miranda / Rui Medeiros, Constituição Portuguesa Anotada, vol. II, Coimbra 2006, p. 303).
A popular referendum initiative is thus always dependent on its subsequent passage by the Assembly of the Republic in a specific referendum process, which must meet certain preconditions and has its own detailed procedure (Articles 16 to 21 of the LOR), and which does not in its own right possess the ability to automatically paralyse a legislative procedure that is already pending.
The provisions of Article 115(2) of the Constitution do not even impose this requirement; all they do is open up the possibility that groups of registered electors may be entitled to exercise the initiative in relation to a referendum (and this referendum initiative is not the same thing as a draft referendum).
As we must conclude, non-suspension of the legislative procedure when a popular referendum initiative on the draft legislation that is under consideration is delivered to the Assembly of the Republic does not suffer from formal unconstitutionality, nor is it in breach of the rule set out in Article 4(2) of the LOR.
b) The time limit for challenging the final version of the legislation
The petitioners also argue that Decree of the Assembly of the Republic no. 64/X (which gave rise to Law no. 32/2006) was sent to the President of the Republic for enactment immediately after the legal text was finalised, before the end of the time period within which Members of the Assembly of the Republic are entitled to challenge the final text (the next three legislative sessions), thereby breaching the provisions of Articles 166 and 167 of the Rules of Procedure of the Assembly of the Republic.
However, the Rules of Procedure of the Assembly of the Republic – which, at the time of the facts described above, were set out in Resolution of the Assembly of the Republic no. 4/93 of 2 March 1993, as amended by Resolutions of the Assembly of the Republic nos. 15/96 of 2 May 1996, 3/99 of 20 January 1999, 75/99 of 25 November 1999, and 2/2003 of 17 January 2003, but have since been repealed and replaced by Rules of Procedure of the Assembly of the Republic no. 1/2007, as published in Series I of the Diário da República dated 20 August 2007 – cannot be used as a parameter for gauging the legality of Law no. 32/2006.
On the one hand, as the Court acknowledged in Ruling no. 63/91 (Acórdãos do Tribunal Constitucional, vol. 18, p. 161 et seq.), the Rules of Procedure should be seen as a normative act that is specific or sui generis – an expression of the Assembly of the Republic’s internal normative autonomy, one whose constitutionality can be the object of a ruling by the Court because it is subject to the Constitution, but which is not comparable to a legislative act in the strict sense of the term (along the same lines, see: Jorge Miranda, Competência interna da Assembleia da República, in “Estudos sobre a Constituição”, vol. I, 1977, Lisbon, p. 294; and Gomes Canotilho, Direito Constitucional e Teoria da Constituição, op. cit., p. 856).
On the other hand, according to Article 281(1)(b) of the Constitution it is only possible to ask for an abstract review of the legality of norms contained in a legislative act when what is at stake is a “breach of a law with superior legal force”, and it is certain that none of the situations provided for in subparagraphs c) and d) of the same paragraph apply to the case before us.
According to the constitutional jurisprudence which the Court systematised in Ruling no. 374/2004 (Acórdãos do Tribunal Constitucional, vol. 59, p. 51), Article 112(3) of the Constitution provides for four kinds of laws with superior legal force. The first two are based on formal or procedural criteria, and the last two on material criteria: (a) organisational laws, which is to say the laws of Assembly of the Republic that address the matters mentioned in Article 166(2); (b) the laws which must be passed by a two-thirds majority, as laid down in Article 168(6); (c) the laws which the Constitution says are a necessary normative precondition for other laws; and (d) the laws which the Constitution says must be respected by other laws.
Now, even if the Rules of Procedure of the Assembly of the Republic could be seen as a type of legislative act, they are not included in any of these groups of laws with superior legal force, and this immediately makes it impossible to invoke this as a parameter of legality for the effects provided for in the above constitutional provision.
It is true that the legal theorists ask whether, for the purposes of controlling legality, one ought not to attribute superior legal force to those of the rules of procedure that directly execute the Constitution (Gomes Canotilho, Direito Constitucional e Teoria da Constituição, op. cit., p. 857). However, this hypothesis does not arise in the case before us, given that, inasmuch as Articles 166 and 167 of the Rules of Procedure of the Assembly of the Republic, which are the articles at stake here, concern the final text of Member’s and government bills and complaints about inaccuracies, they regulate aspects of the procedure for creating laws in relation to which there are no constitutional directives.
Given the above, we are of the opinion that the Court should not hear the request for a review of the legality of Law no. 32/2006 on the grounds that it breaches Articles 166 and 167 of the Rules of Procedure of the Assembly of the Republic.
5. The petitioners believe that Law no. 32/2006 contains various normative solutions that are in breach of not only the Constitution of the Portuguese Republic, but also the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention), the latter’s Additional Protocol on Human Cloning, and the Universal Declaration on the Human Genome and Human Rights.
It is thus now appropriate to formulate a number of general considerations with regard to the normative parameters that may be at stake in the field of medically assisted procreation.
a) Parameters of constitutionality
When it comes to controlling the constitutionality of laws, we must look first and foremost to the Constitution of the Portuguese Republic, although we cannot totally exclude the possibility that international instruments are constitutionally significant, to the extent that they include norms which may be considered to correspond to a constitutionalised right, or which may be used as a criterion for interpreting constitutional norms.
The only express reference to medically assisted procreation in the Constitution of the Portuguese Republic is to be found in Article 67(2)(e), which says that: “the state is particularly charged with (...) regulating assisted procreation in such a way as to safeguard the dignity of the human person”.
As we can see, the constitutional legislators did not limit themselves to imposing a duty to regulate medically assisted procreation. They also provided a normative reference – an indication of principle, to which the ordinary legislative authorities must defer – when they required that this matter be regulated “in such a way as to safeguard the dignity of the human person”.
On the one hand, by imposing a constitutional requirement to regulate, this norm resolves the question of the constitutional admissibility of assisted procreation; but at the same time it fails to recognise a right to all and any procreation which is possible according to the state of the art, and, to begin with, it excludes forms of assisted procreation which damage the dignity of the human person (Gomes Canotilho / Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, 4th edition, Coimbra, p. 859).
By calling on the principle of the dignity of the human person when it talks about medically assisted procreation, this precept refers us to the provisions of Article 1 of the Constitution, which declares that “Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people and committed to building a free, just and solidary society”. By basing the Republic on the “dignity of the human person”, the Constitution attributes an objective dimension to this principle, inasmuch as it seeks to define it as a criterion for the legitimacy of the political power of the state (Maria Lúcia Amaral, O princípio da dignidade da pessoa humana na jurisprudência constitucional, Report of the Portuguese Constitutional Court to the 9th Trilateral Conference between Portugal, Spain and Italy, available at www.tribunalconstitucional.pt). In this respect the principle of the dignity of the human person appears not as a specific fundamental right which could serve as the basis for arguing subjective legal positions, but rather as a legal principle which can be used when it comes to implementing and delimiting the content of fundamental rights that are enshrined in the Constitution, or to revealing certain unwritten fundamental rights.
It is along these lines that it is possible to say that the principle of the dignity of the human person “brings a unity of meaning, of value and of practical concordance to the system of fundamental rights” (Jorge Miranda, Manual de Direito Constitucional, Vol. IV, 4th edition, Coimbra, 2008, p. 197).
So, by referring to the dignity of the human person, Article 67(2)(e) of the Constitution of the Republic is seeking first and foremost to safeguard those personal rights that could most directly be undermined as a result of the application of assisted procreation techniques – especially the right to physical and moral integrity (Article 25), the right to personal identity, genetic identity, the development of personality and the protection of the privacy of personal and family life (Article 26), the right to form a family (Article 36), and also the right to health (Article 64). Without ignoring, on this level, the fact that the subjective universe of persons covered by the protection offered by this norm does not only include the beneficiaries and other people who are involved as participants in the process, but also those persons who are born in the wake of the application of medically assisted procreation techniques.
On the other hand it is the principle of the dignity of the human person acting in articulation with the right to genetic identity which justifies charging the state with duties to defend the life and integrity of human beings against eugenic human selection practises and the reproductive cloning of human beings (Gomes Canotilho / Vital Moreira, idem, p. 200).
It is also within the context of the acknowledgement of the universality of the principle of the dignity of the human person that we find the Constitution’s openness to international law. This results from Article 16(2), when it says: “The precepts which the Constitution and the law lay down in relation to fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights”.
Inasmuch as what this sets out is a principle of interpretation in accordance with the Universal Declaration of Human Rights, the useful scope of the precept is to allow us to turn to the Universal Declaration in order to determine the interpretative meaning of a constitutional norm involving fundamental rights to which it is not possible to attribute a univocal meaning, or in order to be more precise about indeterminate constitutional concepts concerning fundamental rights (Gomes Canotilho / Vital Moreira, idem, pp. 367-368; Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, 3rd edition, Coimbra, 2007, p. 45). The constitutional function of this provision is also highlighted by Moura Ramos, when he says that “Article 16(2) raises [the Universal Declaration of Human Rights] to the status of a criterion for interpreting and completing legal and even constitutional rules where fundamental rights are concerned. In addition to the fact that the Universal Declaration of Human Rights has been integrated into the internal legal order, it is thus apparent that from the moment at which we see it as a point of reference for the interpretation of the rules laid down by the Constitution itself, we acknowledge that this instrument occupies a special – almost supra-constitutional – place” (L'Intégration du droit international et communautaire dans l'ordre juridique national, in “Da Comunidade Internacional e do seu Direito”, Coimbra, 1996, p. 254).
What is more, at first sight and as a general thesis, in the light of the integration clauses derived from Article 8(1) and (2) of the Constitution we cannot exclude the possible constitutional significance of other applicable international-law instruments. In the case of the subject matter that concerns us here, this is particularly true of the Conventions and Declarations that are more closely linked to Bio-Law, such as the Oviedo Convention, its Additional Protocol on Human Cloning, and the Universal Declaration on the Human Genome and Human Rights.
Everything lies in knowing – aspects that we will analyse in a moment – whether their provisions enshrine international fundamental rights that may complement others for which the Constitution makes express provision, and as such, that ought to be addressed by the Portuguese legal order under the terms of Article 16(1) (as regards this possibility, see Gomes Canotilho, Direito Constitucional e Teoria da Constituição, op. cit., p. 369; Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, op. cit., p. 45).
Comparative law also deserves a special reference here. It is clear that the Law of other countries is not a parameter of constitutionality. However, there can be no doubt that when it comes to subjects that are linked to such universal human problems as those related to medically assisted procreation, it may be of interest to know what has been happening in other legal experiences, and (without losing the sense of each legal system’s autonomy) perhaps draw some conclusions from those experiences, especially when it is possible to infer common legal principles from them (on the importance of comparative law in the field of constitutional jurisdiction, see Romano Orrú, La giustizia costituzionale in azione e il paradigma comparato: l' esperienza portoghese, Naples, 2006).
The importance of all these elements can be seen in the light of the “opening up” of the constitutional parameters which apply to the subject of medically assisted procreation, but it is nonetheless those parameters which will provide us with the decisive criteria for any decision. The Constitution raises the dignity of the human person to the status of a primary point of reference where medically assisted procreation is concerned, and it is in accordance with that principle and with the fundamental rights in which it can take concrete form that we must gauge the validity of the normative solutions laid down in Law no. 32/2006.
b) Parameters of legality
As we have seen, the petitioners believe that Law no. 32/2006 contains various provisions which are in breach of not just the Constitution, but also the Universal Declaration of Human Rights, the Universal Declaration on the Human Genome and Human Rights, the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention), and the latter’s Additional Protocol on Human Cloning.
The petitioners argue that Article 8(2) of the Constitution means these international-law instruments bind the Portuguese state, and that the provisions of Law no. 32/2006 which contradict them suffer not only from a defect in terms of their constitutionality, but also from a defect of illegality.
It falls to us to begin by saying that where the Universal Declaration of Human Rights is concerned, the petitioners do not specify which norms can be considered to have been breached; instead, they limit themselves to a generic statement that the provisions of the Law are not in conformity with those of the Declaration.
Whatever the case, given the general sense of the arguments put forward by the petitioners, the principles that may be at stake are those regarding the dignity of the human person and the protection of human life, as referred to in Articles 1 and 3 of the Declaration. According to some legal theorists, as principles with a universalist vocation they can be seen as belonging to the jus cogens, and, given the recognition which, quite apart from anything else, results from the provisions of Article 7(1) of the Constitution, must be afforded a constitutional, or even supra-constitutional, value (in this respect, with specific reference to these provisions of the Universal Declaration, see Jorge Miranda / Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, Coimbra, 2005, p. 90; Jorge Miranda, Curso de Direito Internacional Público, Principia, 2002, pp. 156-157; and, for his acceptance that their universal nature means that formally conventional rules may form part of the international jus cogens, Moura Ramos, Relações Entre a Ordem Interna e o Direito Internacional e Comunitário, in “Da Comunidade Internacional e do seu Direito”, op. cit., pp. 272-273).
And even if this were not the case, these norms should always be seen as enshrining materially fundamental rights, for the purposes of the completion operated by Article 16(1) of the Constitution.
However, where the aforementioned international-law norms are themselves reproduced in the Constitution – namely by means of the reference to them in Articles 1 and 24 – and have thus been “consumed” by it, there is no reason to raise them to the position of an autonomous parameter of the validity of internal law. At most, the provisions of Article 16(2) mean that they might possibly serve as a criterion for interpreting those of the corresponding constitutional precepts that are directly applicable to the case at hand (Gomes Canotilho / Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, op. cit., p. 367).
If we now look at the other three international-law instruments invoked by the petitioners – the Universal Declaration on the Human Genome and Human Rights, the Oviedo Convention, and the Protocol to the latter – only the last two constitute conventional international law that is formally binding on the Portuguese state under the terms of Article 8(2) of the Constitution.
The fact is that the Oviedo Convention, which entered into force in the international legal order on 1 December 1999, and its Additional Protocol on Human Cloning, which entered into force on 1 March 2001, were passed by Resolution of the Assembly of the Republic no. 1/2001 of 3 January 2001 and ratified by Decree of the President of the Republic no. 1/2001, also dated 3 January 2001. They came into force in the Portuguese legal order on 1 December 2001 (by a conjugation of Article 8 of the Constitution, Article 33 of the Oviedo Convention, and Article 5 of the latter’s Additional Protocol).
On the other hand, the Universal Declaration on the Human Genome and Human Rights was adopted by the 29th Session of the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO), in 1997, and we know that Portugal adhered to the Convention which created UNESCO on 11 September 1974. So what we have is a solemn Declaration which was adopted by an international organisation to which Portugal belongs, but which, inasmuch as it is not subject to ratification, is not formally binding on the Portuguese State under the terms and for the purposes of Article 8 of the Constitution.
Turning to the parametric value of the other two international-law instruments (the only ones that it is now important to consider), we cannot exclude the possibility that despite their conventional nature, some of their provisions may possess constitutional force, inasmuch as they present themselves as an expression of general principles of law that are commonly recognised within the framework of the international community as a whole, or at least within that of a given civilisational universe (Article 8), or as unwritten fundamental rights within the framework of the open-ended clause in Article 16(1).
It is thus possible to be of the opinion – especially with regard to the norms contained in Articles 1 and 2 of the Oviedo Convention – that the two instruments indicate the existence of a commitment by the Parties to the primacy of human beings “over the sole interest of society or science”, and of the protection of man’s dignity and identity “with regard to the application of biology and medicine”.
However, even here we cannot ignore the fact that the Constitution takes these conventional international-law parameters for its own when it stipulates limits on the legal regulation of medically assisted procreation which make it possible to make the latter compatible with the basic requirements of the dignity of the human person or of the rule of law (Article 67[e]). This in turn leads us to consider that the norms contained in Articles 1 and 2 of the Oviedo Convention do not possess the value of an autonomous parameter for determining constitutionality, as international-law norms by which the Portuguese state is bound.
On the other hand, and as the dominant interpretation also says, even if we must acknowledge that, as international conventional law, all the other provisions of the Oviedo Convention – particularly Articles 11, 14, 15 and 18 – and all those of the Additional Protocol possess a supra-legal value, “they must be considered to be subject – and to be hierarchically subordinate – to the Constitution” (Moura Ramos, A Convenção Europeia dos Direitos do Homem: sua posição face ao ordenamento jurídico português, in “A Comunidade Internacional e o seu Direito”, op. cit., pp. 55-61; and Gomes Canotilho, Direito Constitucional e Teoria da Constituição, op. cit., p. 923). As such, the possibility that Law no. 32/2006 is not in conformity with any of those precepts could only constitute a problem of mere legality, which, in the case before us, the Constitutional Court is unable to hear.
This is the position that was taken in Constitutional Court Ruling no. 371/91 (Acórdãos do Tribunal Constitucional, vol. 20., p. 7 et seq.):
(…) even from the point of view that Article 8(2) of the Constitution enshrines the principle of the primacy of conventional international law over internal law (…) – i.e. that this constitutional normative provision recognises that the norms contained in private international law possess a value that is infra-constitutional but supra-legal – the characterisation of the corresponding defect and of its projection within the framework of the system for controlling constitutionality lead us to the conclusion that the Court is not competent to hear this request in the present case.
The fact is that from this standpoint, when Article 8(2) of the Constitution says that the norms contained in conventional international law are in force in Portuguese internal law “for as long as they are internationally binding on the Portuguese state”, it is thus saying that such norms cease to be in force in internal law when the state is released from its obligations on the international level in accordance with the internationally accepted forms for such an occurrence. However, it is also saying that, for as long as they are internationally binding on the Portuguese state, those norms will be in full force in the internal order and only an international release from those bonds can put an end that to force, which, therefore, cannot be affected by an act – internal law, for example – that does nothing to change the international bond in question. This means that in the case of a divergence between an international convention and an internal legal norm, and while there are no adequate grounds for releasing the state from its bonds on the international level, the convention must be applied and thus prevails over the sources of legally binding internal law.
However, the point of view that we have been discussing also means that a lack of conformity between an internal-law norm and a norm set out in an international convention immediately generates a first-hand defect of indirect unconstitutionality or of illegality (in the broad sense). In other words, it creates a negative value derived from the fact that even though internal law constitutes a normative act with the same binding efficacy as that possessed by a norm contained in an international convention, the former must bow to the latter because the Constitution, albeit implicitly, awards the latter a higher hierarchical/normative ranking.
Against this background, and although we do not deny that the situation which generates such a defect is underlain by an important question of constitutionality – that resulting from the, albeit merely indirect, breach of the constitutional precept which provides the grounds for the principle of the primacy of conventional international law – this is a problem of illegality and not one of unconstitutionality.
This is also the position taken by Jorge Miranda when, on the subject of the possible discrepancy between internal norms and international-law norms, he says the following: “I reiterate the opinion for which I have long been arguing – that this is a problem of illegality (or of illegality sui generis) and not of unconstitutionality. And this is not just due to a given view of the system of norms and acts, but also because of the content of the phenomenon itself: inasmuch as that which is at stake (…) is first and foremost the contradiction between two non-constitutional norms, not the contradiction between an ordinary norm and a constitutional norm; and it is only because this contradiction exists that we indirectly (or, perchance, consequently) end up talking about unconstitutionality (Manual de Direito Constitucional, Vol. VI, 3rd edition, Coimbra, 2008, pp. 27-28).
Now, the provisions of Article 281(1)(b) to (d) of the Constitution mean that in successive abstract review cases it is only admissible for the Constitutional Court to control the legality of norms on the grounds of a breach of a law with superior legal force or of the statute of an autonomous region.
So, in a successive review case like the one before us, the Constitutional Court can only consider the legality of norms with reference to any of the above parameters, and it is not possible for that consideration process to be based on a lack of material conformity between the law and international-law norms.
Thus, as we must conclude, in the present case the international-law norms which were invoked by the petitioners and by which the Portuguese state is bound (the Universal Declaration of Human Rights, the Oviedo Convention, and the latter’s Additional Protocol on Human Cloning) cannot be used as parameters for gauging the validity of Law no. 32/2006, either because they correspond to a constitutionalised right and do not possess an autonomous parametric value, or because, inasmuch as they raise a mere question of legality, they cannot be considered by the Constitutional Court because they do not fulfil the requirements referred to in Article 281(1)(b) to (d) of the Constitution.
Questions of material constitutionality
6. The petitioners raised the question of the material unconstitutionality of the following sets of norms contained in Law no. 32/2006: Article 4(2); Article 6; Articles 7(3) and 30(2)(q); Articles 9(2) to (5) and 30(2), (e) and (g); Article 10; Article 15(1) to (4); Articles 19(1), 20, 21, 27 and 35; Articles 24 and 25; Articles 28 and 29; Article 36; and Article 39.
In doing so they are seeking to address different aspects of the legal rules governing medically assisted procreation, such as: a) whether it is permissible to use MAP techniques in cases where there is a risk of the transmission of illnesses with a non-genetic or non-infectious origin; b) the absence of an age limit for beneficiaries of the techniques; c) the possibility of resorting to MAP techniques to treat illness in a third party; d) the use of embryos in scientific research; e) whether heterologous procreation is permissible; f) the rule that donors are anonymous; g) the filiation rules in heterologous procreation; h) the absence of limits on the creation of embryos; i) preimplantation genetic diagnosis; j) the absence of punishment for reproductive cloning, and whether the nuclear transfer technique is permissible; and l) the absence of punishment for unpaid surrogate maternity.
These are questions that we will now analyse.
a) Resort to MAP techniques in cases where there is a risk of the transmission of illnesses with a non-genetic or non-infectious origin
The first norm whose material constitutionality is questioned by the petitioners is that set out in Article 4(2) of Law no. 32/2006.
Law no. 32/2006 regulates the use of medically assisted procreation (MAP) techniques. Article 2 defines the scope of the applications covered by the Law as follows: a) artificial insemination; b) in vitro fertilisation; c) intracytoplasmic sperm injection; d) the transfer of embryos, gametes or zygotes; e) preimplantation genetic diagnosis; f) other equivalent or subsidiary techniques for manipulating gametes or embryos in the laboratory.
Under the heading “Conditions for admissibility”, paragraph (1) of Article 4 of the Law states that “MAP techniques are a subsidiary and not an alternative method of procreation”, while paragraph (2) says that “… MAP techniques may only be used following a diagnosis of infertility, or in cases involving the treatment of serious illness or the elimination of the risk of the transmission of illnesses with a genetic or infectious origin or other illnesses”.
With regard to the provisions of paragraph (2) the petitioners do not challenge the possibility of resorting to medically assisted procreation techniques in order to avoid the transmission of illnesses or to treat serious illnesses; they do challenge the extent to which the Law leaves this possibility open when it permits the elimination of the risk of the transmission of other illnesses that are not typified as genetic or infectious.
They allege that in this context the norm opens the way for the selection of embryos in accordance with morphological or genetic characteristics, in order to achieve unidentified goals including the choice of the child’s sex.
We must begin by noting that Article 4 states a broad principle of subsidiarity, in that it permits the use of medically assisted procreation techniques in situations other than infertility, when this is necessary in order to treat serious illnesses or to eliminate the risk of the transmission of illnesses with a genetic or infectious origin or other illnesses.
The question of constitutionality that is posed here involves the difficulty in determining the meaning of the incisive term other, when it is interpreted as being capable of encompassing any other type of illness.
To begin with it is important to say that what is at stake in the segment of the rule before us here is the risk of the transmission of illness, and consequently the mere attempt to avoid, by using a medically assisted procreation technique, that the unborn child or the beneficiary of the MAP technique comes to suffer from a illness that can be characterised as such from a medical point of view and is capable of being transmitted by inheritance or by contagion.
This means that even within the framework of a literal interpretation of the precept, Article 4(2) cannot imply any possibility of choosing the sex of a descendant, or of choosing any other characteristics of the unborn child which do not, in principle, have anything to do with the prevention of illness.
On the other hand the precept cannot but be interpreted within its systematic framework and, in particular, in conjunction with the subsequent provisions of Articles 7(2) and (3) and 29 of the same Law, which offer a more precise picture of its scope, or at least of the general criteria in whose light the concept of other illnesses to which it refers must be completed.
Article 7(2) of Law no. 32/2006 immediately imposes a negative delimitation on the purposes that can be pursued via MAP techniques. It states that “MAP techniques may not be used to achieve improvements in given non-medical characteristics of the unborn child, in particular to choose its sex”. The only exceptions to this norm are laid down in paragraph (3) of the same Article, which states: “Cases where there is a high risk of genetic illness linked to sex, which it is not yet possible to detect directly by means of prenatal diagnosis or preimplantation genetic diagnosis, or where there is a weighty need to obtain a compatible HLA (human leukocyte antigen) group for the purposes of the treatment of a serious illness, are excepted from the provisions of the previous paragraph”.
In addition, on the subject of preimplantation genetic diagnosis, which makes it possible to achieve the purposes referred to in the abovementioned Article 7(3) (see Article 28), Article 29 of the same Law says that this medically assisted procreation technique may only be used to benefit “persons from families with alterations that cause premature death or serious illness, when there is a high risk of transmission to their descendants” (paragraph ) and in accordance with medical indications that are “determined by the current good practices and are among the recommendations made by the Portuguese and international organisations in this area” (paragraph ).
Although there can be no doubt that the field of application of preimplantation genetic diagnosis (PGD) is limited to the diagnosis and prevention of genetic illness or to the treatment of serious illness in a third party (as referred to in the abovementioned Article7), the whole legal context in which provision is made for resorting to this medically assisted procreation technique and in which the conditions under which a MAP technique can exceptionally be used to improve certain non-medical characteristics of the unborn child already provides us with a safe indicator of the general criterion that our legislators took into account with regard to the admissibility of MAP techniques.
The possibility of altering the non-medical characteristics of an unborn child is operated in accordance with a principle of subsidiarity and when there is a high risk of the transmission of a serious genetic illness or the need to treat a illness in a third party (Article7); at the same time, the PGD techniques (which must necessarily be intended solely for those preventive and therapeutic purposes) must take account of the good medical practices included in the recommendations of official bodies with technical skills and responsibilities in this area.
And this is certainly a general principle that cannot fail to be taken into consideration in the legal framework derived from Article 4(2) of Law no. 32/2006. The other illnesses to which the final segment of this norm refers are those in relation to which it becomes possible, in the future, to prevent the risk of transmission by using a MAP technique, when the illness is serious (even if it is not a genetic or infectious illness) and it is not possible to achieve the same result by using another method employed in clinical practice.
Be this as it may, the possibility which, in the present case, served as the grounds for the petitioners to consider that the norm is unconstitutional because it is in breach of the right to life, of the right to physical integrity, of the right to personal and genetic identity and of the principle of equality, is excluded.
Regardless of the validity of the constitutionality parameters invoked by the petitioners when applied to the hypothesis before us, the fact is that the legal system does not increase any effective risk that medically assisted procreation techniques could be used for ethically reproachable ends and, in particular – as the petitioners allege – as a pretext for selective goals of a non-therapeutic nature.
As such, and in short, the part of Article 4(2) that abstractly permits the resort to medically assisted procreation for the “the elimination of the risk of the transmission of illnesses with a genetic or infectious origin or other illnesses” is not unconstitutional; nor does it pose any specific question of constitutionality which is related to this precept and is autonomous and differentiated from other aspects that were also raised and will be discussed below, with regard to the treatment of serious illness in a third party and to preimplantation genetic diagnosis (see 6c and 6i below).
b) The age of MAP beneficiaries
The petitioners also question whether the norm contained in Article 6(2) of Law no. 32/2006 is in conformity with the Constitution, when it does not establish a maximum age limit for MAP beneficiaries.
In this respect they allege that the absence of such a limit will enable older women who have already exceeded their own fertile age to resort to MAP techniques in order to procreate by means of donated oocytes. They go on to add that, as is the case with the current provisions governing adoption, the future relations between the beneficiaries of MAP and the child must be equivalent to those that exist in a relationship of natural filiation, in homage to the superior interest of the child – an interest which must not be ignored because of a personal desire to be a mother at any cost. The petitioners say that, as such, the norm in question is in breach of the provisions of Article 67(1)(e) of the Constitution, inasmuch as the use of MAP techniques must be targeted at the protection of the family, in a way that safeguards human dignity; and that this norm also injures the right to physical integrity (Article 25), the right to the development of personality (Article 26), the right to health (Article 64), the right to protection during maternity (Article 68), and the child’s right to protection (Article 69).
The fact is that after paragraph (1) has defined the universe of persons who may be the beneficiaries of MAP techniques, paragraph (2) of this precept reads as follows: “The techniques may only be used to the benefit of persons who are at least eighteen years of age and are not legally disqualified or incapacitated due to a psychic anomaly”.
So this means that for the purpose of being the object of MAP techniques, the precept lays down an age requirement in terms of a minimum age, but not a maximum one.
It is common knowledge that these days there is a proven tendency to delay motherhood to a later age. This trend can be attributed to a variety of sociological factors, which have already been the object of study (Vanessa Cunha, A Fecundidade das Famílias Portuguesas, in “Famílias no Portugal Contemporâneo”, coord. Karin Wall, Imprensa de Ciências Sociais / ICS, Lisbon, 2004). Biomedicine has accompanied this tendency, and the evolution in the way in which MAP techniques are applied may be leading to a progressive increase in the maximum age up until which they can be used, thereby enabling women who would not be in a condition to procreate under normal circumstances to benefit from medically assisted procreation (for a list of a number of such situations, see Rafael Vale e Reis, O Direito ao Conhecimento das Origens Genéticas, Coimbra, 2008, p. 355).
It is consensual that resorting to MAP at a later age entails risks for both the future mother and the child who will be born as a result. This has made it possible to launch a debate on whether it is appropriate to set a legal limit on the age up until which medically assisted procreation can be used.
On the comparative law level we find that various legal systems have opted to include an age limit on those who can benefit from MAP. This is the case in Austria (40 years), Luxembourg (40), Belgium (42) Slovenia (43), and Denmark (45). (See Replies by the member states to the questionnaire on access to medically assisted procreation (MAP) and on the right to know about their origin for children born after MAP, Steering Committee on Bioethics, Council of Europe, 12 July 2005, available at http://www.coe.int/t/e/legal_affairs/legal_cooperation/bioethics/texts_and_documents/INF_2005_7%20e%20MAP.pdf.) In other countries the subjective requirement for the use of MAP techniques is that both members of the couple are still at a “potentially fertile age” (Article 5 of Italy’s Legge 19 febbraio 2004, n. 40), or are both “at an age at which they can procreate” (Article L-2141-2 of the French Code de la Santé Publique).
However, the Spanish and UK legislators judged that they ought not to set a maximum age for becoming pregnant by MAP, and focused more on the idea of concrete protection for the person who is to be born. This is the direction taken by Article 3(1) of Spain’s Ley 14/2006, de 26 de Mayo, which, on the subject of the personal conditions required for the application of MAP techniques, states that “assisted procreation techniques shall only take place when there are reasonable possibilities for success and they do not imply serious risk for the physical or psychic health of the woman or the possible descendants (...)”. In what is perhaps a broader way (which may cover not only the protection of the physical and psychic integrity of the person who is to be born, but also his/her complete development), the British legislation on the subject of medically assisted procreation imposes an obligation on the competent professionals to assess the “welfare of any child who may be born” (Section 13§5 of the 1990 Human Fertilisation and Embryology Act).
In the Portuguese legal system the question of the possible limitations on the universe of beneficiaries of medically assisted procreation in extreme situations involves not only the right to physical and moral integrity (Article 25 of the Constitution), the right to the development of personality (Article 26), and the duty of parents to educate and maintain their children (Article 36), but also the right of children and young people to the conditions needed for their integral development in a normal family environment (Article 69 and ). All these rights and duties require that there be an effective relationship between the parents and the child who is going to be born, throughout the fundamental stages of his/her education and the formation of his/her personality.
The Constitution requires that protection be afforded to the rights of the unborn child, and therefore that the superior interest of the future child be safeguarded in accordance with the basic principles of medical and legal ethics.
It is possible to say that Law no. 32/2006 generically affirms this protection when its Article 3 states that “MAP techniques must respect human dignity”.
At the same time we should note that the desired age limit is implicit in the legal regime derived from Article 4 of the Law, which we analysed earlier. MAP techniques are a subsidiary, not an alternative, method of procreation and can only be used when there is a prior diagnosis of infertility. This presupposes the idea that the woman who is to benefit from them must be at an age at which she would normally be able to procreate if one of the members of the couple were not affected by an inhibiting factor of a clinical nature. The same principle applies to the use of MAP techniques for any of the purposes provided for in the second part of Article 4(2), inasmuch as here too it is supposed that the woman is at a potentially fertile age and that she is resorting to medically assisted procreation solely because of the need to avoid the risk of the transmission of illness or to provide the means for treating a serious illness in a third party.
It is thus possible to say that although the Portuguese legal system has not opted for an express verbal formulation in order to impose an age limit on the beneficiaries of MAP techniques, at this level the effect of the systematic element of interpretation means that it does end up coming close to the normative criteria set out in Italian and French law, to the extent that it establishes restrictive conditions which, in principle, prevent the possibility that medically assisted procreation techniques can be used in circumstances that are contrary to the normal order of things.
It remains to note that these legal rules are also covered by a variety of safeguard clauses derived from the provisions of Articles 11(1), 12(c), and 14(2) of Law no. 32/2006. On the one hand, the medical decision whether to use MAP techniques must bear in mind the latter’s subsidiary nature in relation to other treatments with the same objective, as well as the prospects for success and the inconveniences that the techniques may imply for any of the interested parties; at the same time the beneficiaries must be informed in advance of the probable medical, social and legal implications of the proposed treatments, and also, so that they can give their free and informed consent, of all the known benefits and risks that result from the use of MAP techniques. This naturally leads both the health professionals involved and the people who are directly interested to weigh up all the significant risks for both the health of the mother and the child, and the subsequent development of the child’s personality, in the light of the age of the person or persons who are seeking to submit themselves to any of these medically assisted procreation methods.
Given all this, we must consider that notwithstanding the absence of a maximum limit on the age at which a person may be subjected to MAP techniques, the legal rules do not damage any of the values to which the Constitution affords its protection, and particularly any of those referred to by the petitioners.
c) Resort to MAP in order to treat serious illness in third parties
The petitioners also question the constitutionality of the norms contained in Articles 7(3) and 30(2)(q) of Law no. 32/2006, to the extent that they permit the possibility of the creation of medicine-embryos and thus permit the instrumentalisation of the human embryo in violation of the provisions of Articles 24, 25, 26, 67 and 68 of the Constitution.
Article 7(3), which we have already transcribed, provides that medically assisted procreation techniques may be used not just for infertility-related reasons or to avoid the transmission of genetic illnesses, but also to ensure that the future child possesses an HLA group that is compatible with another person (e.g. a family member linked to the child by blood ties). The norm in question thus permits the selection of embryos by their HLA group, with the implantation of only those that are compatible with living family members suffering from serious illness.
The selection of embryos with an HLA group which is compatible with that of another person becomes possible by means of preimplantation genetic diagnosis (PGD), as referred to in Articles 28 and 29 of Law no. 32/2006. The objective is to transfer to the mother’s uterus those embryos that possess a given genetic characteristic, which will subsequently be used, via the future child’s biological material, for therapeutic ends, thereby making it possible to save the life or improve the state of health of another person.
The provisions of Article 7(3) therefore presuppose that embryos be subjected to a genetic analysis at a time when they are not yet implanted in the mother’s uterus.
On the comparative law level, and although a significant proportion of legal orders do not yet allow embryos to be selected on the basis of their genetic compatibility with a family member who is suffering from a serious illness, there has been a growing trend for this procedure to become legally permissible. Spanish law authorises the use of PGD to select embryos based on HLA group for therapeutic ends in relation to third parties, although it subjects the procedure to obligatory case-by-case approval by the National Commission on Assisted Human Reproduction (CNRHA) (see Article 12 of Ley 14/2006). The French legal order has recently also permitted the selection of embryos by PGD for purposes related to a serious genetic illness in a sibling that was recognised as incurable at the moment of the diagnosis (see Article L2131-4-1 of the Code de La Santé Publique). This practice has also been permitted in the United Kingdom since 2004 (see Human Fertilisation and Embryology Authority Report: Preimplantation Tissue Typing, 2004, pp. 2 and 10, at www.hfea.gov.uk/docs/PreimplantationReport.pdf).
Before we analyse the constitutional conformity of the normative solution that has been challenged in the present case, we should recall that Article 4(2) of Law no. 32/2006, which precedes Article 7(3), permits the possibility of using MAP techniques not only in infertility-related situations, but also in order to treat a serious illness or to obviate the risk of the transmission of illnesses – aspects which we have already looked at and which did not raise any doubts on the level of their constitutionality. Within this context the norm contained in Article 7(3) limits itself to making it possible in practical terms to implement one of the purposes of medically assisted procreation, within the scope of the applications that are permitted by law. It seeks to define the preconditions governing the possibility of selecting a genetic characteristic of an embryo for the preventive or therapeutic effects discussed above.
It is important to point out that this possibility is permitted on a subsidiary and exceptional basis. The procedure involved in selecting embryos in accordance with their HLA group (which is especially at stake here, given the terms in which this question of constitutionality has been raised) is an exception to the rule derived from Article 7(2) of the same Law, which prohibits choosing the unborn child’s characteristics. It can only be used in cases of weighty necessity and in order to treat a serious illness. Apart from anything else, under the terms of Article 30(2)(q) fulfilment of this precondition is subject to an individualised assessment by the National Council on Medically Assisted Procreation (CNPMA).
At the same time it is important to note that under these conditions the medically assisted procreation method uses embryos which have not yet been implanted and in relation to which it is not possible to apply either the guarantee of the protection of human life, in its role as a constitutionally protected value, or any of the other, associated, personal rights, such as the right to physical integrity or the right to personal and genetic identity. Moreover, precisely because the transfer to the mother’s uterus has not yet occurred, nor does an embryo that is subjected to MAP techniques for the purposes provided for in Article 7(3) benefit from the protection that corresponds to that applicable to intrauterine life. Indeed, according to constitutional jurisprudence the latter is itself based on a gradualist process of weighing up the situation, which must take into account the different phases of the unborn child’s development (see Constitutional Court Ruling no. 617/06, published in Series I of the Diário da República dated 20 November 2006).
The question of constitutionality that it may be possible to ask in the light of the utilitarian perspective derived from this legal precept is whether a solution violates the principle of the dignity of the human person, to the extent that even though it has not been implanted, the embryo is capable of leading to the existence of a human life.
We should note that it is the Law itself which states that “MAP techniques must respect human dignity” (Article 3), and it is also on this level that the question is posed in the Oviedo Convention, Article 18 of which says:
1 – Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo.
2 – The creation of human embryos for research purposes is prohibited.
As we can see, the Convention does not prohibit research on embryos, but only their creation with the deliberate goal of using them in scientific research; and where genetic research is concerned, only requires that the latter be conducted in such a way as to ensure the “adequate protection of the embryo”, which naturally presupposes that MAP techniques which involve this type of activity do not in their own right represent any breach of the right to life or the right to personal and genetic identity, but must rather only be carried out in a way that does not endanger the principle of human dignity.
We have already seen that application of the preimplantation genetic diagnosis technique for the purposes permitted by Article 7(3) can only take place when there is a weighty need to obtain a compatible HLA group in order to treat a serious illness and it is intended to save the life or improve the state of health of a third party, who is normally a member of the family of the person who is going to subject herself to implementation of the MAP technique.
The possible injury to the protection derived from human dignity which the genetic screening of an embryo can represent in these circumstances is consequently counterbalanced by fulfilment of the right to health of a third party whose life is in danger. As such, at the end of the day this legislative solution corresponds to fulfilment by the state of the right to the protection of health in its positive sense, as a means of ensuring the adoption of measures designed to prevent and treat illnesses (Article 64 of the Constitution).
Within the legal regime laid down by the Law, the alleged “instrumentalisation” of the embryo thus proves justified by the prevalence of other constitutionally protected values, which are also of an eminently personal nature. This immediately excludes the possibility that the genetic control of embryos can be considered to damage the principle of the dignity of the human person.
From another point of view it must be said that when an embryo is viable, implementation of a pre-implantation genetic diagnosis does not entail any risk to the development of the child who will be born from it, nor is there any evidence that the circumstances surrounding the conception can in any way damage the psychological well-being of the donor child, or that he/she may in any way come to consider that his/her dignity was diminished by the fact that he/she was conceived with the idea that he/she might come to save someone else’s life (see Human Fertilisation and Embryology Authority Report, op. cit., pp. 4-5; and the data gathered by the PGD Consortium Steering Committee of the European Society of Human Reproduction and Embryology (ESHRE), as published in Human Reproduction, vol. 22, no. 2, 2007, pp. 323-336; also on these aspects, see Guilherme de Oliveira, Um caso de selecção de embriões, in “Temas de Direito da Medicina”, Coimbra, 2005, p. 288).
As such, we can conclude that the normative solution contained in the Law fits within the framework of a criterion for weighing up the situation and harmonising it with other values that are also protected by the Constitution, naturally without undermining the dignity of the persons who are directly involved; and that in the light of the desired objectives, it thus ensures that the embryo is adequately protected.
This in turn leads us to consider that there is not sufficient reason to uphold the allegation of unconstitutionality.
d) Research with resort to embryos
Another of the questions of constitutionality raised by the petitioners is the lawfulness of the research with resort to embryos that is provided for in the norms contained in Articles 9(2) to (5) and 30(2)(e) and (g) of Law no. 32/2006.
Under the heading “Research with resort to embryos”, Article 9 lays down the following:
1 – The creation of embryos via MAP with the deliberate objective of their use in scientific research is prohibited.
2 – Scientific research on embryos is, however, lawful when the objective is embryo-related prevention, diagnosis or therapy, perfecting MAP techniques, or creating banks of stem cells for transplant programmes or any other therapeutic purposes.
3 – Resort to embryos for scientific research may only be permitted on condition that it is reasonable to expect that it may result in a benefit for humanity, and each scientific project shall be dependent on its consideration and a decision by the National Council on Medically Assisted Procreation.
4 – Only the following may be used for the purposes of scientific research:
a) Excess cryopreserved embryos in relation to which no parental project exists;
b) Embryos whose state does not permit transfer or cryopreservation for procreation purposes;
c) Embryos which have a serious genetic anomaly, for use within the framework of preimplantation genetic diagnosis;
d) Embryos which are obtained without resorting to fertilisation by sperm.
5 – Resort to embryos under the conditions set out in subparagraphs (a) and (c) of the previous paragraph is dependent on obtaining the express prior informed and aware consent of the beneficiaries to whom they are destined.
At the same time, under the terms of Article 30(e) and (g) of the same Law the National Council on Medically Assisted Procreation (CNMAP) has the competence to “give an opinion on the creation of banks of stem cells, as well as on the destination of the biological material that results from their closure”, and “to consider, and either approve or reject, research projects that involve embryos, under the terms laid down in Article 9”.
The petitioners argue that the legal solution that is outlined in this way is in breach of the provisions of Articles 24, 26, 68 and 69 of the Constitution of the Republic, which ought to be interpreted in conformity with the provisions of Articles 1, 2, 14, 15 and 18 of Oviedo Convention.
So this is the question of constitutionality which it is now of interest to analyse.
It is known that experimenting on embryos can bring important benefits in the therapeutic field, not only as regards the development of new medically assisted procreation techniques and new contraception methods, but also in terms of the investigation of new formats for treating innumerable illnesses of the most varied types (see Rui Nunes, Opinion of the Portuguese Bioethics Association [APB] no. P/01/APB/05, on the use of human embryos in scientific research, at www.apbioetica.org/fotos/gca/1128590447embriao.pdf [in Portuguese]).
As the National Council on Ethics for the Life Sciences (CNECV) tells us, one of the main ends of research on embryos today is the study of embryonic stem cells, which can help obtain knowledge about the causes and treatments of illnesses for which curative therapeutic measures are not currently known (Opinion 47/CNECV/05, on research on stem cells, November 2005, conclusions 1 and 3, p. 4, at http://www.cnecv.gov.pt/cnecv/pt/Pareceres/ [in Portuguese]).
On the comparative law level the various normative solutions are not convergent. The Italian legal order prohibits any experimentation with human embryos (Article 13 of Legge 19 febbraio 2004, n. 40); but experimentation is currently permitted – albeit within strict limits – in Spain (Articles 14, 15 and 16 of Ley 40/2006), France (Article L2151-5 of the Code de la Santé Publique), and the United Kingdom (Section 2 of the 2001 Human Fertilisation and Embryology [Research Purposes] Regulations). According to the European Commission, research on embryos is also authorised in Belgium, Denmark, Finland, Germany, Greece, Holland and Sweden (see Survey on opinions from National Ethics Committees or similar bodies, public debate and national legislation in relation to human embryonic stem cell research and use, org. Line Matthiessen-Guyader, September 2003, Directorate E-Biotechnology, Agriculture and Food, pp. 10, 12, 15, 19, 24, 32 and 43, at http://bioethics.academy.ac.il/articles/CATALOGUE-SC-MEMBER-STATES-FINAL-VERSION.pdf).
In addition, scientific research on embryos in vitro is referred to in the abovementioned Article 18 of Oviedo Convention, which accepts the possibility that state legislation may regulate this matter, without prejudice to the limits imposed by the need to provide for adequate protection of the embryo (paragraph 1), and which only prohibits the deliberate creation of embryos for research purposes (paragraph 2).
Finally, the European Union organs do not consider research on human embryos to be contrary to fundamental ethical principles, and do not exclude the possibility that such research may obtain Community funding, on condition that it is not targeted at human cloning for reproductive purposes and is not designed to create human embryos solely for research purposes (see Article 6 of Decision no. 1982/2006/EC of the European Parliament and the Council of 18 December 2006). In this area the only thing the European Parliament recommends is that the Member States should prohibit all research into any type of human cloning and should establish criminal sanctions for infractions in this respect (European Parliament Resolution on Cloning of 7 September 2000).
Despite this, and given the terms in which the petition is couched, it is possible that the issue here is the constitutional protection afforded to human life (Article 24), the right to a human being’s personal and genetic identity (Article 26), the right to fatherhood and motherhood (Article 68), and children’s right to protection (Article 69).
However, all the considerations that we have already expounded with regard to the normative solution set out in Article 7(3), in which the possibility of genetic research on embryos was also at stake, albeit in that case for the purposes of the treatment of serious illness in a third party (see point 5.c above), are also important here.
As we explained in relation to Article 7(3), the essential point is that scientific research under the terms of Article 9 involves embryos which have not been implanted in the mother’s uterus and in relation to which there are no questions of constitutionality concerning the right to life or the rights to personality, and the only consideration is the protection of embryos from the perspective of the dignity of the human person, to the strict extent that an embryo might give rise to a human life if it were viable and were to be used in a parental project.
And from this point of view the legal regime that is condensed in the aforementioned provisions of Article 9 already offers adequate protection.
We should first of all note that the norm prohibits the creation of embryos with the deliberate objective of using them in scientific research (paragraph 1).
On the other hand, save for the provisions of Article 9(4)(d), which we will look at separately, when embryos are created for the purposes of medically assisted procreation they can only be used for research if it has not been possible to incorporate them into the framework of a parental project, or they have not been used by the couple in question and the latter has not authorised their donation under the terms of Articles 10 and 25(5), or they have become unviable (because their state does not permit their transfer or cryopreservation with a view to procreation), or they have a serious genetic anomaly (Article 9a to c).
Lastly, it is important to recall that research with resort to embryos is only lawful when it is for one of the ends mentioned in Article 9(2) (embryo-related prevention, diagnosis or therapy, perfecting MAP techniques, or creating banks of stem cells for transplant programmes or any other therapeutic purposes) and, under the terms of paragraph (3), on condition that it is reasonable to expect that a benefit for humanity may result therefrom.
In other words, the only embryos that can be used in scientific experiments are those that would otherwise be destroyed, given that the possibility of their being involved in a parental project must be excluded; and even in these circumstances, experimentation is only permissible for therapeutic, preventive or diagnostic ends, in a way that must be able to contribute to the progress of scientific knowledge and must even offer the probability that there will be a benefit for the human species.
The norms contained in Article 9(1) and (4) adequately guarantee that embryos are protected, inasmuch they prohibit the creation of embryos with the deliberate objective of using them in research, and ensure that only embryos which cannot be destined for procreation purposes can be used for experimentation purposes. It is thus clear that the use in research of embryos that were created via MAP is the exception and solely includes cases in which the only possible alternative would be biological death.
Besides which, once these conditions have been met, a scientific project involving embryos must still be approved by the National Council on Medically Assisted Procreation, in accordance with the criteria and objectives defined in paragraphs (2) and (3) of the same precept (see Article 30g).
So the law grants embryos that could be used in scientific research a fate matching their potential human dignity and, on this level, fulfils the ethical principles derived from the Oviedo Convention and the various Community instruments. At the same time, bearing in mind – as we have already clearly seen – that the embryos which are usable in scientific research are those which cannot be applied for procreation-related ends, the requirement for the embryos in question to be unviable means that there is no possibility of the occurrence of any breach of the right to motherhood and fatherhood or of the child’s right to protection, which the petition also invoked as parameters of constitutionality.
What is more, the legal regime operationalises a legislative harmonisation with other constitutional rights and values, such as the freedom of scientific creation, taken in articulation with the right to health, which are respectively protected by Articles 42(2) and 64(1) of the Constitution. It is important to attach the necessary significance to this fact, which, from the constitutional-law perspective, single-handedly justifies the normative solution that has been adopted.
In addition to the previous question, the norm contained in Article 9(4)(d) also poses another problem – that of the conformity with the Constitution of non-reproductive therapeutic cloning, inasmuch as it seems that when the Law talks about “Embryos that are obtained without resorting to fertilisation by sperm”, it is referring to cloned embryos.
Therapeutic cloning, which is still at an initial stage of development, consists of using cloning techniques to produce stem cells that are capable of being transplanted without any risk of rejection.
The scientific community is currently debating whether or not the product of the cloning process ought to be called an embryo, and whether or not it should be deemed equivalent to the latter for all ethical and legal purposes. A variety of terminological and conceptual formulations that seek to respond to these questions are being proposed (See Report on human cloning, April 2006, pp. 11-12, at http://www.cnecv.gov.pt/cnecv/pt/Pareceres/ [in Portuguese]).
Given the doubts that are being raised on the ethical level, the CNECV argues that therapeutic cloning ought to be judged in accordance with “the nature that is attributed to the product of a somatic cell nuclear transfer: if it were to be considered an embryo, it cannot be used because this would constitute a violation of its intrinsic dignity; if it were to be considered a laboratory artefact, it can be used in biomedical research without raising ethical problems other than those inherent in the use of human biological material – particularly that of not selling it”. The Commission concludes that in the current state “of an absence of unanimity or of a broad scientific and philosophical convergence as to the nature of the product of a somatic cell nuclear transfer, we consider that one must apply the ethical principle of precaution” (Opinion 48/CNECV/06 on Human Cloning, April 2006, conclusions 3 and 4, p. 3 [in Portuguese]).
The World Health Organisation says that there are valid scientific justifications for research with resort to cloning, for therapeutic purposes, and accepts that major benefits of a therapeutic nature may come about as a result of the development of cloning techniques for reproducing human tissues and organs. The WHO thus considers that the relevant research should be conducted, but that steps should be taken to ensure that cloning for reproductive purposes is excluded [see the report entitled Cloning in Human Health (A52/12), 1 April 1999, 52nd General Assembly of the WHO, p. 3 (nos. 15-16), at http://www.who.int/ethics/en/A52_12.pdf].
On the legal level it is not possible to say that the provisions of the Additional Protocol to the Oviedo Convention, on the Prohibition of Cloning (which Portugal ratified on 13 August 2001), make therapeutic cloning unlawful, given that under the terms of Article 1(1) the only thing that is prohibited is any intervention with the purpose of “seeking to create a human being genetically identical to another human being, whether living or dead”.
From the constitutional-law point of view, one possible issue could be the protection of the embryo versus the freedom of scientific creation and the state’s duty to promote health.
However, it is first of all important to specify the true scope of the provisions of Article 9(4)(d) of Law no. 32/2006, above all when interpreted in conjunction with those of Article 9(1) of the same Law. Paragraph (1) prohibits the creation of embryos with the deliberate objective of their use in scientific research. Given that this is the essential criterion, it appears that if we are to avoid an irremediable contradiction between the two norms, we must conclude that the legislator did not consider the product of a somatic cell nuclear transfer to be a true embryo, notwithstanding the way in which Article 9(4)(d) is formulated. It thus seems possible that from the legislator’s perspective, the product is a mere laboratory artefact without the capacity to turn into a human being.
As such, this lends even more credence to the comments we have already made in relation to the use in scientific research of embryos that find themselves in the situations provided for in Article 9(4)(a), (b) and (c).
Therapeutic cloning offers a number of potential benefits in the medical field, particularly in terms of cellular and genetic therapy. It thus contributes to fulfilment of the constitutional duty to promote health and, seen from a different angle, can be thought of as a way of implementing the freedom of scientific creation, in this area. On the one hand, considering the product of a somatic cell nuclear transfer to be a laboratory product and something that is different from an embryo excludes the constitutional parameter of the dignity of the human person and attenuates the force of the collision between different values to which the Constitution affords its protection.
Be that as it may, the use in scientific research of embryos obtained without resort to fertilisation by sperm, as provided for in Article 9(4)(d), is subject to the same degree of protection as that afforded to the other situations that are provided for in the same precept. In particular, there remains the requirement for each research project to be considered and approved by the National Council on Medically Assisted Procreation; in addition, the Law (Article 36) prohibits, and imposes criminal sanctions on, cloning for reproductive purposes – a prohibition which is derived from the need to protect fundamental rights that are enshrined in the Constitution (see point 6.j below).
Given everything we have said above, it is not possible to say that the norms contained in Law no. 32/2006 which authorise scientific research on embryos – including that contained in Article 9(4)(d) – are contrary to the Constitution.
e) Admissibility of heterologous procreation
Heterologous procreation – i.e. the use of the medically assisted procreation technique that implies resorting to donor gametes and the donation of embryos – is also questioned in the petition.
It is Article 10 of Law no. 32/2006 that regulates this matter, as follows:
1 – Resort may be had to donations of oocytes, sperm or embryos when, given the medical/scientific knowledge that is objectively available, it is not possible to obtain a pregnancy by resorting to any other technique which uses the beneficiaries’ gametes, and on condition that effective conditions for guaranteeing the quality of the gametes are assured.
2 – Donors may not be held to be progenitors of the child who is to be born.
The petitioners argue that this legal solution leads to the existence of children of an unidentified biological father and/or mother, and that this is in breach of Articles 26(1) and 36(4) of the Constitution, given that it does not safeguard either the fundamental right to know one’s parentage and have it recognised, as an essential point of reference for each person, or the right to identity, which encompasses the right to one’s personal history.
At the same time they also allege that for the law to allow the donation of female gametes undermines women’s dignity, inasmuch as it makes it possible to mark the collection of oocytes with an (albeit invisible) mercantilist stamp. What is more, the donation of oocytes requires the use of a collection technique that is allied with the stimulation of the ovaries by hormonal induction. Ovarian hyperstimulation poses a danger to the woman’s life, and particularly affects women who are in a more fragile state, thereby attacking the tendency towards equality between citizens. In the petitioners’ opinion, these circumstances cause a breach of the provisions of Articles 9(d), 24, 25, 64 and 67 of the Constitution.
Whether the law should permit the donation of gametes is a problem that is the object of a great deal of debate in many countries, both in ethical terms and in relation to a number of legal aspects of the question.
From the ethical point of view, and although there are arguments both for and against heterologous procreation, the National Council on Ethics for the Life Sciences has taken the stance that while it is in principle preferable to use only the couple’s own gametes, where MAP techniques are concerned, “exceptionally and for weighty reasons of a strictly medical nature, when the couple’s reproductive health is at stake, it should be possible to consider resorting to a one-off donation of gametes” (see the CNECV’s Report on medically assisted procreation, July 2004, pp. 36-37, and Opinion 44/CNECV/04 of the same date, conclusions 7 and 8, p. 4, at http://www.cnecv.gov.pt/cnecv/pt/Pareceres/ [both in Portuguese]).
Turning to comparative law we find some quite different solutions in the various legal orders, although the majority trend is towards the lawfulness of both the donation of female and male gametes and the donation of embryos.
As to the donation of semen, currently only Italian law forbids it, and this within the context of an overall prohibition on any form of heterologous reproduction (Article 4 of Legge 19 febbraio 2004, no. 40). Having said this, the Italian Constitutional Court did not consider that the opposite legal solution would warrant a finding of unconstitutionality, inasmuch as it held that it was permissible for the question to be subjected to referendum – a finding which presupposes the belief that donation is nevertheless compatible with the Constitution (Sentenza no. 49/2005, at www.cortecostituzionale.it).
The donation of oocytes is prohibited by other legal orders besides the Italian one. Germany is one example (Gesetz zum Schutz von Embryonen (Embryonenschutzgesetz - EschGo) of 13 December 1990, §11), and the same solution has been adopted by countries such as Austria, Switzerland and Norway (see Replies by the member states to the questionnaire on access to medically assisted procreation (MAP) and on the right to know about their origin for children born after MAP (2005), Steering Committee on Bioethics, Council of Europe, op. cit.). This prohibition has essentially been justified by reasons linked to the non-dissociation of motherhood and to the risk that the donation of oocytes will favour late pregnancies (see point 6.b above).
Portuguese law – which, via Article 10 of Law no. 32/2006, permits both the donation of male and female gametes and the donation of embryos – is similar to Spanish law (see Article 5 of Ley 14/2006), French law (Article L1244-1 of the Code de la Santé Publique), and English law (1990 Human Fertilisation and Embryology Act, as amended by Schedule 3 of the 2008 Act).
At this point we must, however, say that a variety of provisions mean that the law enshrines a principle of subsidiarity in relation to the use of heterologous procreation techniques. The donation of sperm, oocytes and embryos is only permitted when, in the light of the medical/scientific knowledge that is objectively available at the time, it is not possible to obtain a pregnancy by resorting to any other technique that uses the beneficiaries’ own gametes (Article 10). Similarly, insemination with semen from a third-party donor can only occur when it is not possible to achieve the pregnancy with the husband or de facto partner of the woman who is to be inseminated (Article 19). The same applies to in vitro fertilisation using donor semen or oocytes and in relation to other MAP techniques like intracytoplasmic sperm injection and the transfer of embryos, gametes or zygotes (Articles 27 and 47).
From this perspective, the legislator ends up giving preference to the match between social parenthood and biological parenthood, and only admits the possibility of heterologous procreation in exceptional cases in which it is not possible to overcome a situation of infertility without resorting to a third-party donor.
From the constitutional-law point of view, determining the subsidiary admissibility of such techniques essentially entails analysing the right to personal identity in the light of any conflict with the right to the development of personality and the right to form a family.
We should remember that MAP may also be seen as a means of exercising the fundamental right to form a family, as provided for in Article 36(1) of the Constitution. This is the opinion of Gomes Canotilho and Vital Moreira, who define the right to form a family as implying “not only the right to live together and the right to marriage, but also a right to have children (…); a right which, although it is not essential to the concept of family and does not even presuppose it, is naturally associated with it” (Constituição da República Portuguesa Anotada, vol. I, op. cit., p. 567).
As the same authors point out, knowing “the point to which the right to have children involves a right to heterologous artificial insemination” (ibid) is problematic. The difficulty in answering this question within the legal framework derived from the provisions of Article 36(1) can only mean that it is not evident that heterologous procreation is a solution which is imposed by the Constitution – an observation that does not mean that it must be seen as contrary to the Constitution either.
The Civil Code makes provision for a series of situation in which there is biointerference in the family by a third party, with the only precondition being the existence of consent: Articles 1979(2) and (5) and 1992(2) allow a person to adopt his/her spouse’s children; and Article 1883 allows children who are conceived outside a marriage to be brought into the family unit. It is also important to remember that the Portuguese legal order has been familiar with the phenomenon of procreation with resort to donor semen for years, and the norm contained in Article 1839(3) of the Civil Code means that a woman’s husband is not able to challenge the paternity of a child born to her by means of artificial insemination with donor sperm, when he consented to the process (Jorge Duarte Pinheiro, Direito da Família e das Sucessões, vol. II, 2nd edition, AAFDL, Lisbon, 2006, p. 115).
As regards the civil-law norms that permit the adoption of the other spouse’s children or the inclusion in the family unit of children who were not conceived within a marriage, the differentia specifica posed by heterologous procreation is that in this case the dissociation between social parenthood and biological parenthood results from the intentional resort to a medically assisted procreation technique. If a question of genetic identity and personal identity were to arise, it would apply to any of the similar situations that are traditionally accepted in the Portuguese legal order.
However, we consider that none of these rights is affected to any decisive extent.
The right to personal identity, as it is enshrined in Article 26(1) of the Constitution and as it has been interpreted, covers not only the right to one’s name, but also the right to one’s personal history, in the form of knowledge of the identity of one’s progenitors. In its own right it can constitute the grounds for a right to investigate paternity and maternity, in such a way that all the individuals concerned enjoy the possibility of establishing their own bond of legal filiation based on the biological bond (Gomes Canotilho / Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, op. cit., p. 462; in the same sense, also see Constitutional Court Ruling no. 456/03).
However, it is not the norm before us now that can undermine the right to one’s personal history when seen in this way, but rather any of the other legal provisions which condition access to information about the donor’s identity. We shall be analysing these provisions in a moment (see point 6.f below), but they include those regarding the duty of secrecy imposed on everyone who intervenes in a MAP process.
On the other hand, it is arguable whether a right to know who one’s progenitors are can be demanded in all circumstances – and thus in the field of heterologous procreation as well. The right to personality that may be at stake here is the right to genetic identity referred to in Article 26(3) of the Constitution. It is to the extent that a person’s personality is conditioned by the genetic factor that genetic identity itself becomes one of the essential components of the right to personal identity (Jorge Miranda / Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, op. cit., pp. 204-205).
Having said this, the right to genetic identity especially refers to the intangibility of the genome and the unicity of each person’s genomic makeup, essentially with the object of preventing the genetic manipulation and cloning of human beings (João Loureiro, O Direito à Identidade Genética do Ser Humano, in Portugal-Brazil Year 2000, “Studia Iuridica” 40, Coimbra, 1999, p. 288).
As such, it is not the techniques employed by reproductive medicine and the simple provision for the possibility of resorting to artificial insemination or to in vitro fertilisation with gametes from a third-party donor, subject in any case to the limits imposed by the provisions of Article 7 of Law no. 32/2006, which can endanger the right that is constitutionally guaranteed by Article 26(3) of the Constitution.
It is thus possible that we still find ourselves within the leeway which the legislator possesses to freely weigh up the option of permitting medically assisted heterologous procreation (similarly, see João Loureiro, Filho(s) de um gâmeta menor? Procriação medicamente assistida heteróloga, in “Lex Medicinae – Revista Portuguesa de Direito da Saúde” no. 3 (2006/6), p. 48).
In the petitioners’ opinion heterologous procreation has, however, another implication which could mean that the norm is not in conformity with the Constitution because it is in breach of the provisions of the latter’s Articles 9(d), 24, 25, 64 and 67. They say that this breach results from the fact that there could be a “disguised commercialisation” of female gametes, which could affect the most vulnerable women, with risks to the donor’s life and physical integrity; and that it means that the state would thus cease to fulfil its duties to achieve the well-being and quality of life of its citizens under equal conditions, to promote health, and to protect the family.
We must note, however, that the legal rules governing medically assisted procreation are surrounded by a variety of mechanisms that safeguard the system’s operability and legal conformity. On this level, of particular significance are the fact that MAP techniques must obligatorily be administered at public or private centres which are expressly authorised to do so by the Ministry of Health – an authorisation that must itself be preceded by an opinion from the National Council on Medically Assisted Procreation (CNMAP) (Articles 5 and 30[b] and [d]; and the requirement that CNMAP must monitor such centres, especially with a view to their compliance with the law (Article 30[c]. What is more, there is a register of personal data related to MAP processes, including the data concerning donors, to which CNMAP must necessarily have access (Articles 16 and 30[i]; and the use of the techniques is itself subject to a prior decision by a doctor who must evaluate both all the conditioning factors that must be taken into consideration, and consequently the clinical situation of all of the participants as well (Article 11).
Moreover, the Law itself prohibits the purchase or sale of ovules, semen, embryos, and any biological material derived from the application of MAP techniques (Article 18).
We can thus see that although the law does not stipulate a limit on the donation of gametes, the National Council on Medically Assisted Procreation has been recommending that “It is advisable that no male donor may give rise to more than eight full-term pregnancies” and that “no female donor may make more than three donations during her lifetime, whether or not those donations result in pregnancy” (see “Requirements and Parameters for the Operation of Medically Assisted Procreation Centres”, 9 May 2008, National Council on Medically Assisted Procreation, p. 28, available at http://www.saudereprodutiva.dgs.pt/?cpp=1[in Portuguese] ).
As such, the possibility that a female donor’s physical integrity will be damaged as the result of repeated participation in MAP procedures is not directly increased by the fact that the law makes provision for heterologous procreation, but rather by the simple failure to fulfil the functional duties that are imposed on whoever is supposed to superintend and collaborate in the implementation of the techniques and supervise the activities in question. So there is no breach of the constitutional precepts as a result of the law.
And consequently there is no reason to hold the aforesaid norm contained in Article 10 unconstitutional.
f) The question of knowing donor identities
The petitioners also question the material constitutionality of the norms contained in Article 15(1) to (4), taken in conjunction with the norms contained in Article 10(1) and (2), to the extent that they deny the person who is to be born with resort to heterologous procreation “the possibility of knowing his medical antecedents”. They argue that a person who is conceived by means of medically assisted procreation techniques does not enjoy this possibility because of the duty of secrecy which the law imposes on all the participants in the process, that this places him/her in an unequal position compared to any other citizens, and that the absence of a legal limit on the number of inseminations a given donor can provide generates clear risks of consanguinity.
The norm that we must investigate in this context is related to the legal provision which makes it possible to resort to donations of sperm, oocytes or embryos in order to implement a MAP technique (Article 10). Under the heading “confidentiality”, this rule says the following:
1 – Everyone who, in any way, becomes aware of the resort to MAP techniques or of the identity of any of the participants in the respective processes is obliged to maintain secrecy in relation to their identity and to the MAP act itself.
2 – Persons who are born as a consequence of MAP processes with resort to the donation of gametes or embryos may obtain information of a genetic nature that concerns them, excluding the donor’s identity, from the competent health services.
3 – Notwithstanding the provisions of the previous paragraph, the persons referred to therein may obtain information about the existence of any legal disqualification in relation to a proposed marriage from the National Council on Medically Assisted Procreation, but the donor’s identity shall be kept confidential unless he expressly permits otherwise.
4 - Without prejudice to the provisions of the previous paragraphs, information about the donor’s identity may also be obtained for weighty reasons that have been recognised by a court.
5 – Birth certificates may in no case whatsoever contain any indication that the child was born as a result of the application of MAP techniques.
So the question that poses itself is that of a donor’s anonymity, which has been widely debated by the legal theorists and has been the object of some very different legal solutions in different legal orders.
On the comparative law level, most countries have the rule that donors must be anonymous. Spanish law makes data related to donors confidential, with the possibility for children born as a result of heterologous procreation to access general information about donors. This information does not include the latter’s identity, except in extraordinary cases involving danger to the child’s life or health (see Article 5 of Ley 14/2006). The principle of anonymity has also been adopted in France (Articles 1244-6 and 1244-7 of the Code de la Santé Publique).
Having said this, various countries – particularly the Nordic and Anglo-Saxon ones – have been changing their legislation, abandoning the anonymity rule and allowing people who have been born as a result of MAP to know the identity of their gamete donors, when they have attained a sufficient degree of maturity. This group includes Sweden (see document issued by the Steering Committee on Bioethics, 12 June 2005, op. cit., pp. 60, 64 and 68), Switzerland (Article 119[g] of the Federal Constitution), and the United Kingdom (section 31ZA[a] of the 2008 version of the Human Fertilisation and Embryology Act).
From the constitutional-law point of view, there is tension between a number of different fundamental rights here. On the one hand, we have the fundamental right of persons who are born as a result of MAP to personal identity, from which it would seem that there is a derived right to know one’s genetic ancestry (Articles 26 and  of the Constitution); on the other, the right to form a family and the right to the privacy of personal and family life (respectively provided for in Articles 36 and 26 of the Constitution).
The question must be posed in these terms, given that the possibility of knowing the identity of the donors of gametes and/or embryos does not imply the recognition of any legal bond of a filial nature. This is expressly derived from the provisions of Article 10(2), which says: “Donors of gametes may not be held to be progenitors of the child who is to be born”.
Some authors argue in favour of the unconstitutionality of the rule that donors must be anonymous, on the grounds of the “right of every human being to know how he/she was generated” or his/her genetic heritage (Diogo Leite de Campos, A procriação medicamente assistida heteróloga e o sigilo sobre o dador – ou a omnipotência do sujeito, in “Revista da Ordem dos Advogados”, Year 66, December 2006, p. 1028; Paulo Otero, Personalidade e Identidade Pessoal e Genética do Ser Humano: um perfil constitucional da bioética, Almedina, 1999, p. 71 et seq.; Tiago Duarte, In Vitro Veritas? A procriação medicamente assistida na Constituição e na lei, Coimbra, 2003, pp. 44 to 48). Others say that the nature of the right to know one’s genetic origins is not absolute and argue in favour of a balanced solution that takes account of other interests or conflicting values, such as the defence of peace within the family (Guilherme de Oliveira, Aspectos Jurídicos da Procriação Medicamente Assistida, in “Temas de Direito da Medicina”, Coimbra Editora, 2005, p. 18; Rafael Vale e Reis, O Direito ao Conhecimento das Origens Genéticas, op. cit., p. 491).
The Constitutional Court stated the same principle when it was given the opportunity to pronounce on the right to know who one’s biological mother and father are, as one aspect of the right to personal identity, in a case that involved the question of the constitutionality of the deadline of at most two years after attaining adulthood for bringing a suit to discover the identity of one’s parents. In this respect, in Ruling no. 23/06 the Court noted that the aspect of the right to personal identity which concerns a person’s history implies that there must be legal means for demonstrating biological bonds, but accepted that “values other than unlimited acceptance of the right to determine the biological reality of one’s filiation (...) can intervene when one weighs up the interests at stake, in a way that compresses the extent to which the biological truth can be revealed”.
Along similar lines, in its Ruling of 13 February 2003 in Odièvre v. France the European Court of Human Rights also accepted that, with regard to the French legal rules governing so-called “anonymous births”, there could be limits on the right to know one’s genetic origins, and that in this field states could create restrictions designed to fulfil all the interests in play, in accordance with criteria of proportionality.
At this point it is necessary to remind ourselves that Article 15 of Law no. 32/2006 does not lay down a definitive rule on donor anonymity, but only a prima facie one that admits exceptions for which express provision is made. In reality, although the people who intervene in the procedure are subject to a duty of secrecy, persons who are born in the wake of the use of MAP techniques that resort to the donation of gametes or embryos can ask the competent health services to provide them with the information of a genetic nature that concerns them (paragraph ), together with information on the existence of any legal disqualification applicable to a planned marriage (paragraph ); in addition to which they can also obtain information about the identity of gamete donors when weighty reasons for doing so are recognised by a court (paragraph ).
The question that poses itself is thus not whether a legal regime that imposed total donor anonymity would be constitutional, but rather whether it is constitutional to establish donor anonymity as a rule and the possibility of knowing donors’ identity as an exception to it.
As such, the relevance to the question before us now of any generic statements about the existence of a right to know one’s genetic origins is diminished, inasmuch as that existence is not at issue; rather, the only thing that is at stake is the relative weight that such a right warrants and the importance that is attached to it by the law, as part of the regime which the latter created in concrete terms.
The fact is that we can see that solutions based on a balance or practical concordance are admissible.
In reality, personal identity is a concept that refers to the person who constructs him/herself over a lifetime in the light of the relationships that grow up during that period, while biological bonds are just one aspect of that reality; and so each individual’s personal history is also the story of the relationships he/she has lived with others, such that – one could say – it is not possible to isolate one person’s life from that of the people with whom he/she has lived in close contact since birth (João Loureiro, O Direito à Identidade Genética do Ser Humano, op. cit., p. 292).
The image of the person which is supposed by the Constitution is not just that of an individual who lives in isolation and possesses a given genetic code; the Constitution supposes a broader image of the person – a person who is integrated into the effective reality of his/her family and human/social relations. As such, one could say that, up to a certain point, the right to personal identity possesses a heterogeneous content: it includes different types of faculty, and the domain in which they are protected is not absolutely uniform, with the possibility that its intensity differs depending on the type of situation in question (on the heterogeneity of the content of fundamental subjective rights, see Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, op. cit., pp. 175-177).
So the legal positions contained within the right to personal identity – the right to know one’s genetic origins, for example – do not necessarily possess a force in constitutional-law terms that is uniform and totally independent of the different contexts in which that personal identity is actually developed. Thus, recognition of a right to know one’s genetic origins does not preclude the legislator from modelling the exercise of such a right in accordance with other interests or values that enjoy constitutional protection and are capable of being reflected in the broader concept of personal identity.
What is more, the right to form a family is certainly a factor to be taken into consideration when weighing up the subsidiary admissibility of heterologous procreation. From the moment at which one accepts a form of medically assisted procreation that presupposes the donation of gametes by a third party, it would be hard to understand the imposition thereon of a legal regime that tended to affect peace within the family and the bonds of affection which link its members. As such, and given that we have already discussed the constitutional conformity of this kind of procreation when no other is medically possible (see point 5.e above), we should not consider it constitutionally inadmissible for the legislator to create the conditions needed to safeguard the peace and privacy of family life, without interference from third-party donors who, in principle, only sought to assist in the formation of a family.
Be this as it may, we should underline the fact that the legal regime under which donor identities are not revealed is not a closed one. The National Council on Medically Assisted Procreation holds the information on donor identities and can furnish it under the terms and within the limits provided for in Article 15, both by supplying data of a genetic nature and by identifying situations in which matrimony is precluded, with the further possibility of identifying a donor when a court decides that there are weighty reasons which make such a revelation justifiable (Article 30[i]). In addition, the weighty reasons referred to in Article 15(4) of Law no. 32/2006 must be considered in the light of the right to personal identity and the right to the development of personality mentioned in Article 26(1) of the Constitution of the Republic, which, as set out therein, may deserve to prevail when a concrete case is considered.
Again contrary to the allegations made in the petition, everything that we have said so far means that there is no breach of the principle of equality with regard to persons who are born as a result of the use of MAP techniques.
Notwithstanding the duty of secrecy that binds the persons who intervene in the process, they can access all the information concerning their genetic antecedents, and only access to that concerning the donor’s identity itself is subject to prior authorisation by a court. However, this limitation on knowledge of one’s progenitor (albeit not absolute) is, as we have already implied, justified by the need to preserve other values to which the Constitution affords its protection, so it could never be seen as an arbitrary discrimination that is capable of undermining the principle of equality between citizens.
In the whole of this context, the option which the legislative authorities chose when they established a mitigated regime governing donor anonymity cannot be criticised from a constitutional point of view.
g) The rules governing filiation in heterologous reproduction
Article 19(1) of Law no. 32/2006 provides for artificial insemination with semen from a third-party donor. Article 20(1) adds that the child who is born therefrom is held to be the child of the husband or de facto partner of the inseminated woman, on condition that he consented to the insemination. Accordingly, paragraph (5) of the same precept allows the husband or de facto partner to challenge the presumption of paternity established under the terms of paragraph (1) if it is proved that there was no consent, or that the child was not born as a result of the insemination for which consent was given. Article 21 then goes on to say that the third-party donor cannot be held to be the father, and that he has no powers or duties in relation to the child. Under Article 27 of the same Law, in vitro fertilisation with semen from a third-party donor is subject to identical rules.
The petitioners argue that these four precepts are unconstitutional because they mean that the right to know one’s parenthood and for it to be recognised can be overcome – an argument which they draw from the provisions of Article 26 of the Constitution. They also consider that by admitting single-parenthood, this legislative solution conflicts with the rule contained in Article 6 of Law no. 32/2006 and injures the superior interest of the child who is to be born by breaching the principles derived from Articles 36(4) and 69 of the Constitution (there can be no doubt that the petitioners’ reference to Article 68, which appears to have no bearing on the case, is a mistake). The petition also invokes the absence of any sanction for failure to comply with the rule that a child must have two parents – a feature which, in the petitioners’ opinion, strengthens the idea that the Law accepts the idea of monoparental procreation.
We have already discussed the specific problem that heterologous procreation entails a possible breach of the right to personal identity (see point 6.e above).
Inasmuch as the law admits this form of procreation, and given that we have already concluded that it does not breach the right to personal identity in its own right, it does not make sense to contest the legal paternity criterion which results from the aforementioned provisions of Articles 20(1) and 21 (in this sense, see Tiago Duarte, In Vitro Veritas? A procriação medicamente assistida na Constituição e na lei, op. cit. p. 67).
Jorge Duarte Pinheiro (Direito da Família e das Sucessões, Vol. II, op. cit. p. 140) is of a similar opinion when he says: “In heterologous assisted procreation it is not reasonable to insist on the biological criterion and to attribute or impose legal situations of paternity to/on someone who is a mere donor of genetic material. The filial bond must instead be formed in relation to the male MAP beneficiary who did not contribute his reproductive cells to the process, on condition that he gave valid consent to that formation. This is all the more true in that he played a key causal role in the birth. It was his decision that began the procreation process”.
The filiation regime that is embodied in the norms before us matches the principles which the Council of Europe’s Ad Hoc Committee of experts on progress in the biomedical sciences defined in relation to this subject in 1989 (see Report on Human Artificial Procreation, principle 14(2) and (3), at http://www.coe.int/t/e/legal_affairs/legal_cooperation/bioethics/texts_and_documents/MAP%20principles%20CAHBI%201989.asp#TopOfPage). Indeed, it is paralleled in virtually all foreign legal orders – neighbouring examples include the cases of Spain (Article 8 of Ley 14/2006), France (Articles 311-19 and 311-20 of the Code Civil), and the United Kingdom (§28 of the 1990 Human Fertilisation and Embryology Act). Particularly symptomatic in this respect is the Italian law on medically assisted procreation, which, notwithstanding the fact that it prohibits artificial insemination with gametes from a third-party donor (Article 4), does not allow anyone who has consented to heterologous insemination to challenge paternity, or donors to make any claim to paternity (Article 9 and  of Legge 19 febbraio 2004, n. 40).
However, the petitioners refer especially to Article 20(5) of Law no. 32/2006, saying that by allowing challenges to presumed paternity when a husband did not consent to his wife’s heterologous insemination, it contradicts the provisions of Article 6(1) of the same Law and breaches the child’s right be protected by society, and particularly the right to benefit from a bi-parental family structure of his/her filiation. They further underline their understanding by also invoking the fact that Article 35 of the same Law makes no provision for any sanctions for breaches of the two-parent principle set out in Article 6.
We should begin by saying that the aforesaid Article 20(5) neither precludes nor undermines the two-parent principle stated in the earlier Article 6(1). As derived from the latter precept, the rule is that “Only persons who are married and are not judicially or de facto separated, or who are of different sexes and have been living under conditions that are analogous to those of spouses for at least two years, may resort to medically assisted procreation techniques”.
At the same time, Article 20 establishes a presumption of paternity in relation to a male spouse who has consented to the heterologous insemination of his wife (paragraph ), and precludes him (paragraph  has the same effect) from subsequently exercising the right to challenge this presumed paternity. Quite apart from anything else, this is a rule that can be explained in the light of the legal format of an abuse of a right. It would be contrary to good faith for a person who accepted a heterologous insemination process in order to solve his own problem of sterility and who agreed to be invested in the social function of a father despite not being the biological progenitor to subsequently contest the filial bond (Pereira Coelho / Guilherme de Oliveira, Curso de Direito da Família, Volume II, Part I, Coimbra, 2006, p. 143; Moitinho de Almeida, La filiation dans la réforme du Code Civil Portugais du 25 novembre 1977, BMJ no. 285, p. 22; Guilherme de Oliveira, Critério jurídico da paternidade, Coimbra, 1998, p. 352).
In addition, the law surrounds the consent of the husband or de facto partner with the maximum precautions. Under the terms of Article 14(1) of Law no. 32/2006 this consent must be given “in express written form before the doctor who is responsible for the case”; while paragraph (2) of the same Article states that “beneficiaries must be informed in advance, in writing, of all the known benefits and risks that result from the use of the MAP techniques, together with their ethical, social and legal implications”.
With these conditioning factors, under the precise terms of Article 20(5) it is only possible to challenge the presumption of paternity when one can prove that “there was no consent or the child was not born as a result of the insemination for which consent was given”.
We should nonetheless note that such a situation could only arise under anomalous conditions in which a Health Centre has not functioned properly, and that on top of this the law provides for a sanction against such a possibility. This offers a reasonable guarantee that, in practical terms, medically assisted procreation is not viable without the consent of both spouses or de facto partners, or in a situation involving a breach of the two-parent rule provided for in Article 6(1).
The fact is that Article 44(1)(c) and (d) of Law no. 32/2006 qualifies the application of any MAP technique without first verifying compliance with the bi-parental requirements referred to in Article 6, or without the consent of both beneficiaries given in the form of a document that fulfils the requirements laid down in Article 14, as an administrative offence that is punishable by a fine of between €10,000 and €50,000 in the case of natural persons and €10,000 and €500,000 in that of legal persons; and this is supplemented by the accessory sanctions provided for in Article 45, such as the temporary prohibition on working, the temporary closure of the establishment, or the termination of the authorisation to function.
What is more, under the terms of Article 5(1) “MAP techniques may only be administered at public or private centres that are expressly authorised to do so by the Ministry of Health”, while Article 34 says that the application of such techniques outside authorised centres is punishable by up to three years in prison. In addition to these penal consequences, this means that that it is impossible for the filiation regime derived from the aforementioned rules contained in Articles 20(1) and 21 to apply when the MAP technique that is at stake here is used outside the institutional framework defined by law.
It is also important to say that the pecuniary nature of the sanctions with which the legislator has chosen to punish MAP without the consent of both beneficiary spouses is the same as that which other, foreign legislations have adopted in relation to this matter – particularly in Spain (Articles 26[b] and 27 of Ley 14/2006), and Italy (Article 12 of Legge 19 febbraio 2004, n. 40). The option which the Spanish legislator adopted (in the original law on MAP – Ley 35/1988) has already been considered by the Spanish Constitutional Court, which concluded that the administrative sanctions imposed on infractions against the MAP rules were not unconstitutional, because there was no constitutional requirement for a criminal punishment, because the nature of the penal protection was fragmentary (not absolute), and because penal law is subject to the principle of minimum intervention (see the aforementioned Sentencia no. 116/1999).
The International Association of Penal Law opined in the same way at its Congress in Vienna in 1989, where it debated the relationship between penal law and modern biomedical techniques. In its conclusions the Congress reiterated that, in the context of medically assisted procreation, the nature of penal law is that of ultima ratio (Costa Andrade, Direito penal e modernas técnicas biomédicas: as conclusões do XIV Congresso Internacional de Direito Penal, in “Revista de Direito e Economia”, no. 15, 1989, pp. 388 and 389).
Given all the safeguard clauses that derive from the legal system, negative paternity conflicts can only arise out of abnormal situations, and in no way is it possible to say that the legislator intended to create a monoparental regime.
As such, and as everything leads us to conclude, the alleged unconstitutionality does not exist.
h) The non-creation of excess embryos and the general prevention of multiple pregnancies
The petitioners consider that Articles 24 and 25 of Law no. 32/2006 set out a principle of the discretionary creation of embryos and permit the occurrence of multiple pregnancies by the simple exercise of medical and scientific power, thereby enhancing the possibility of situations involving foetal malformation. As such, they lean towards the belief that such legislative solutions are in breach of the provisions of Articles 64, 67(2)(e) and 68 of the Constitution.
The norms in question are included in the chapter on in vitro fertilisation.
Article 24 stipulates that “in in vitro fertilisation only the number of embryos considered necessary to the success of the process must be created, in accordance with good clinical practice and the principles of informed consent” (paragraph ); and that “the number of oocytes that are to be inseminated in each process must take account of the couple’s clinical situation and the general indication that multiple pregnancies must be prevented” (paragraph ).
Article 25 provides for the fate of embryos that cannot be transferred to the mother’s uterus, as follows:
1 – Embryos which, under the terms of the previous Article, are not to be transferred must be cryopreserved, and the beneficiaries shall undertake to use them in a new embryo transfer process within a maximum time limit of three years.
2 – At the end of the three-year period the embryos may be donated to another couple whose medical diagnosis of infertility recommends it, whereupon the facts that determine this solution shall be recorded.
3 – The fate of the embryos which is provided for in the previous paragraph may only come about with the consent of the beneficiaries who originated the embryos, or of the surviving beneficiary in the event of the other’s death, whereupon the provisions of Article 14(1) shall apply, mutatis mutandis.
4 – Embryos whose morphological characteristics do not indicate the existence of the minimum conditions required for their viability are not subject to the provisions of paragraph (1).
5 – The provisions of Article 9 shall be applied to embryos which it is not possible to involve in a parental project.
On the first problem raised by the petitioners, it is necessary to say that it is not possible to derive a principle of the discretionary creation of embryos from any of the provisions they mention.
The “creation of embryos” referred to in Article 24(1) can only be achieved by means of the “insemination of oocytes” mentioned in paragraph (2) of the same Article; and that which results from the combined interpretation of these provisions is that it is only possible to inseminate oocytes (and thus create embryos) in the number needed for the success of the medically assisted procreation process, bearing in mind both good medical practice and the couple’s clinical situation.
This idea is simultaneously corroborated by Article 9(1), which prohibits the creation of embryos for research purposes.
The legislators consequently based themselves on a principle of necessity that is assessed against a medical criterion. This immediately removes the possibility that the law can be interpreted in any way which would enable us to consider that the arbitrary creation of embryos is possible.
The legal rules bear in mind that the number of embryos needed for fertilisation to be successful cannot be defined a priori and in a generalised manner, but instead requires a clinical assessment that depends on the concrete case in question. In any case, the law means that the medical decision-maker is bound by a minimum intervention logic based on a calculation of probability, and simultaneously cannot fail to be aware that the fertilisation process is linked to the goal of procreation.
As the National Council on Ethics for the Life Sciences acknowledges, it is not in principle possible to guarantee an absolute match between the number of embryos that are created and the number that are transferred to the uterus, and it is always necessary to accept the existence of embryos “which, due to imponderable circumstances or reasons”, are “excluded from the parental project that originated them” (Opinion 44/CNECV/04, op. cit., point 20 [in Portuguese]). The 1995 CNECV Report on the status of the application of new technologies to human life (p. 3) also includes references to the “inevitability of occasionally obtaining supernumerary embryos”, and to the idea that it is only in a limited number of cases that is it possible to achieve a successful artificial insemination by just inseminating more or less the same number of oocytes as the number of embryos that are to be transferred (at http://www.cnecv.gov.pt/NR/rdonlyres/E932BA3E-FE2D-484A-9371-C245862C24B/0/1995RelatorioNovasTecnologias.pdf [in Portuguese]).
On top of the fact that there are cases in which there is no scientific guarantee that all the oocytes will be fertilised and multiple attempts are therefore necessary, it is also necessary to bear in mind that the embryos which are created may possess morphological anomalies that make them unviable (see The Protection of the Human Embryo in vitro, Steering Committee on Bioethics, 19 June 2003, p. 13, at http://www.coe.int/t/e/legal_affairs/legal_cooperation/bioethics/texts_and_documents/CDBI-CO-GT3(2003)13E.pdf). What is more, circumstances may arise outside the medically assisted procreation process itself and prevent the embryos that are created from being transferred to the uterus (e.g. the death of the female beneficiary, or a supervening illness that makes her unable to go ahead with the pregnancy – a hypothesis in which Italian law expressly says that the cryopreservation of embryos is permissible [Article 14(3) of Legge 19 febbraio 2004, n. 40]).
In this context the occurrence of excess embryos is an inevitability that can only be prevented by the general prohibition of in vitro fertilisation – a measure which would constitute an unjustifiable retrograde step in the development of biomedicine, and which would be incompatible with the point of reference derived from Article 67(2)(e) of the Constitution.
As we noted earlier, the parameter for determining constitutionality which is implied in the creation of excess embryos as the result of the application of a MAP technique is the principle of the dignity of the human person, bearing in mind that the embryos in question have not been implanted in the mother’s uterus and cannot be awarded a degree of protection that would correspond to the protection afforded to either human or intrauterine life.
With regard to this point, the constitutional admissibility of medically assisted procreation that results from the authorisation which the Constitution grants to the ordinary legislator to regulate the process in such a way as to “safeguard the dignity of the human person” (Article 67[e]) is implicitly underlain by the idea that, within the constitutional-law framework, it is possible to reconcile this value with other values to which the Constitution affords its protection, such as the right to form a family (Article 36), which is incorporated in an area of personal autonomy that is also derived from the principle of the dignity of the human person.
Now, although Article 25 of Law no. 32/2006, which we transcribed a moment ago, does not absolutely guarantee the protection of pre-embryonic life, it does regulate the fate of unimplanted embryos with the respect due to their potential human nature, inasmuch as it requires that embryos which did not have to be transferred must be cryopreserved so that they can be used in a new embryo transfer process, either by the original beneficiaries, or by another couple to whom they are donated (Article 25 and ); while only those embryos which prove unviable due to their morphological characteristics, or which cannot be involved in a parental project in some other way, can be used in scientific research in conformity with the provisions of Article 9 (Article 25 and ).
As we already weighed up when we analysed this specific question (see point 6.e above), in addition to only involving excess cryopreserved embryos that cannot be used for procreation-related ends or whose state means that such use is impossible (per a joint interpretation of the provisions of the abovementioned Article 25 and the norm contained in Article 9), scientific experimentation on embryos is only lawful if it is undertaken with therapeutic, preventive or diagnostic objectives and on condition that it can reasonably be expected to result in a benefit for humanity (Article 9 and ).
There is nothing in any of these conditions that would allow us to conclude that the legal system is seeking to bring about the free creation of embryos, or that it ceases to provide an adequate protection for embryos which cannot be implanted.
The petitioners go on to consider that there is also a breach of the right to the protection of health provided for in Article 64 of the Constitution, because when Article 24 of Law no. 32/2006 regulates in vitro fertilisation, it permits the implantation of more than one embryo in the mother’s uterus, with the ensuing risk of the occurrence of multiple pregnancies and situations in which foetuses are malformed.
We should recall that even though the aforesaid Article 24 does not impose a maximum limit on the number of embryos that can be transferred, it only permits the creation of “the number of embryos considered necessary for the success of the process (…) in accordance with good clinical practice” (paragraph ); and that it subjects the insemination of oocytes in each process to conditions related to “the couple’s clinical situation” and the general indication that “multiple pregnancies must be prevented” (paragraph ).
And so, although our legislators did not follow the criterion of indicating a number that has been adopted by other legislative systems (e.g. Germany – § 13 of the Embryonenschutzgesetz; Italy – Article 14 of Legge 19 febbraio 2004, n. 40; and Spain – Article 3 of Ley 14/2006), the fact is that they nonetheless defined the requirements by which the medical decision must be governed, especially with regard to the need to prevent multiple pregnancies.
There is thus no reason to consider that the legal regime is in conflict with the provisions of Article 64 of the Constitution, given that it is equipped with mechanisms which, by means of a correct application by the medical teams that intervene in the process, seek to avoid multiple pregnancies and to safeguard women’s physical integrity and health.
i) Preimplantation Genetic Diagnosis (PGD)
Another of the questions raised by the petitioners concerns the constitutionality of Articles 28 and 29 of Law no. 32/2006, which regulate preimplantation genetic diagnosis (PGD).
The petitioners allege that this diagnosis is intended to produce human beings who are selected in accordance with pre-established qualities, thereby constituting a manipulation which is contrary to the dignity, integrity and unique and unrepeatable identity of the human being and which breaches Articles 25, 26, 67 and 68 of the Constitution. They also say that Law no. 32/2006 was passed without taking into account the fact that the National Council on Ethics for the Life Sciences (CNECV) was preparing an opinion on this topic – a move which may represent a failure to respect the competences which Law no. 14/90 of 9 June 1990 attributes to this entity.
We will begin by addressing the latter issue. In this respect we should say that the National Council on Ethics for the Life Sciences that was created by Law no. 14/90 is an independent organ which functions under the aegis of the Presidency of the Council of Ministers. It is responsible for systematically analysing the moral problems raised by the progresses which science is making in the field of biology, medicine and health in general, and for issuing opinions on this matter when asked to do so by the President of the Republic, the Assembly of the Republic, or one twentieth of the Members of the Assembly of the Republic in full exercise of their functions (Articles1, 2[a] and [b], and 7).
However, the Constitution does not impose any requirement on the legislative procedure with regard to questions that arise within the scope of the CNECV’s field of activity, and in particular as regards the legal regulation of medically assisted procreation, which Article 67(2)(e) of the Constitution entrusts to the ordinary legislative authorities. There is no requirement for any prior duty to consult the CNECV, all the more so in that we can see from the abovementioned Article 7 of Law no. 14/90 that requesting an opinion is optional.
What is more, genetic diagnoses related to procreation are nothing new in our domestic law. Law no. 3/84 of 24 March 1984 states that family planning postulates “genetic counselling actions” (Article 4) – a requirement which is understood to imply the need to undertake “investigations that tend to permit prenatal diagnosis in the form of pre-conception diagnosis” (Guilherme de Oliveira, O direito do diagnóstico pré-natal, in “Temas de Direito da Medicina”, op. cit, p. 217). At the same time, since 1997 the National Reproductive Health Programme has provided for prenatal diagnostic exams and resources – chorion biopsies, amniocentesis, and cordocentesis, for example – for detecting serious genetically-based illnesses and genetically-based anomalies (Order of the Minister of Health no. 5411/97, as published in Series II of the Diário da República dated 6 August 1997).
We should also add that in general terms, in the opinion which it subsequently approved in April 2007 and which referred expressly to Law no. 32/2006 of 26 July 2006, which had been published in the meantime, the CNECV pronounced itself in favour of the admissibility of PGD. Its opinion was that resorting to PGD, in its role as a diagnostic research technique, “does not violate fundamental ethical principles”, and can be said to be of positive value from the ethical point of view “when it is possible to avoid the development of a human being who has a high probability of being born with, or developing, a serious illness that would lead to premature death and prolonged and irreversible suffering”, or “when, following medical assessment, it is demonstrated that at least one of the progenitors is the bearer of a hereditary genetic alteration which causes serious illness”; nor, in the light of a principle of solidarity, does it exclude the “use of PGD to select embryos that will donate stem cells for the purpose of treating a fatal illness in a family member” (Opinion on Preimplantation Genetic Diagnosis [51/CNECV/07], April 2007, conclusions 1, 3, 4 and 8, pp. 3-4, available at http://www.cnecv.gov.pt/cnecv/pt/Pareceres/ [in Portuguese]).
Specifically on the subject of the constitutional admissibility of PGD, to begin with it is important to bear in mind that the law says that the situations in which MAP can be used include: (i) the treatment of serious illness; and (ii) elimination of the risk of transmitting genetic, infectious or other illnesses (Article 4). The genetic embryo analysis performed by PGD is intended to make it possible for application of the medically assisted procreation technique for any of these ends to be successful. This is why Article 28(1) permits the use of PGD for “the purposes provided for in Article 7(3) – i.e. in order to obtain a compatible HLA group for treating a serious illness in a third party – and also in order to detect embryos that “possess a serious anomaly, before they are transferred to the mother’s uterus”.
In both situations PGD is designed to select embryos. In the first case there is a positive selection – embryos with certain genetic characteristics are chosen for implantation into the mother’s uterus; in the second, there is a negative selection – embryos that suffer from a serious anomaly are excluded from use in uterine implantation.
We have already analysed the constitutionality of positively selecting embryos in accordance with their genetic characteristics (HLA group) in order to treat a serious illness (see points 6.a and 6.c above). We saw that there is no viability in the proposition that the application of a MAP technique to that end constitutes a eugenic practice, given that the objective is solely therapeutic. Having reached the conclusion that resorting to MAP to treat serious illness in the forms laid down in Articles 4(2) and 7(3) is not unconstitutional, we cannot but reach the same understanding in relation to the performance of PGD when it is used for that same purpose, given that in such circumstances it takes on a mere instrumental function. The fact is that when the objective is to treat a serious illness and there are no infertility problems and no risk of the transmission of a genetic illness, resorting to MAP is justified precisely by the possibility of selecting embryos with the desired HLA group – something that is only possible by means of PGD.
It therefore remains to us to consider the constitutionality of selecting embryos negatively, depending on the results of the PGD.
PGD makes it possible to detect embryos that carry a genetic illness. It constitutes a medically assisted procreation technique that falls within the scope of the purposes for which the Law, in the form of the last part of Article 4(2), makes provision (for an exemplification of serious genetic illnesses in relation to which the risk of transmission is capable of being avoided by the use of PGD, see Stedman Dicionário Médico, 27th edition, 2003, Guanabara Koogan, pp. 70, 308, 596, 1559 and 1671).
The fact that in this context PGD prevents miscarriage and avoids the birth of persons with serious health problems is acknowledged in a variety of documents issued by entities with consultative competences in this field (see The Protection of the Human Embryo in vitro, Steering Committee on Bioethics, op. cit., p. 30; and the CNECV’s Report on Medically assisted Procreation, July 2004, op. cit., p. 45, note 63 [in Portuguese]).
We should also note that although this technique can endanger embryos or imply their destruction, in itself it does not lead to risks for the future health of the child who is to be born, and from this point of view it is possible to consider that “this technique is relatively innocuous” (Vera Lúcia Raposo, Pode trazer-me o menu por favor? Quero escolher o meu embrião, in “Lex Medicinae – Revista Portuguesa de Direito da Saúde” no. 8, 2007, p. 60). When an embryo is viable, once a cell has been collected for analysis, the embryo’s normal development continues and it possesses the normal probabilities of giving rise to a healthy child (again see Human Fertilisation and Embryology Authority Report: Preimplantation Tissue Typing, op. cit., p. 4; and the data gathered by the PGD Consortium of the European Society of Human Reproduction and Embryology, as above).
The fundamental reason that can be advanced against the use of PGD for preventing genetic illness is the fact that it implies the destruction of embryos and that it provides access to forms of eugenics which can be considered contrary to the dignity of the human person (Articles 1 and 67[e] of the Constitution).
However, it is appropriate to point out that, as is the case in embryo research, the embryos in question are always at a very initial stage of their development – more precisely, between the 3rd and 6th days (CNECV Report on Preimplantation genetic diagnosis, April 2007, p. 8, available at http:/www.cnecv.gov.pt/cnecv/pt/Pareceres/ [in Portuguese]); and, given the immediate therapeutic objective that is at stake here, there is thus all the more reason to say that our considerations about research with embryos are valid (see point 5.d above).
What is more, as the National Council on Ethics for the Life Sciences explains, PGD can also be seen as a way of protecting human life in the foetal stage. In reality the preimplantation detection of illnesses and anomalies not only makes it possible to avoid situations in which a miscarriage is caused by the fact that the foetus is unviable as a result of an anomaly or illness which can be detected by PGD, but may also avoid later abortions of pregnancies that are already in the foetal stage (idem, pp. 24-25). Inasmuch as we know that the Penal Code says that abortion is not punishable when “there are safe reasons to predict that the unborn child will come to suffer incurably from a serious illness or a congenital malformation” (Article 142[c]), in this context PGD can be described as an alternative to a therapeutic abortion achieved by injuring the unborn child (for the same view, see Luca Gianaroli, Cristina Magli and Anna Ferraretti, Preimplantation genetic diagnosis, in “Current practices and controversies in assisted reproduction”, WHO, Geneva, 2002, p. 218).
As for the consideration that PGD makes it possible to select embryos in accordance with genetic characteristics, we must bear in mind that the objective of any MAP technique is always to prevent an illness. There can be no doubt that here, once again, the valid consideration is the degree of ethical difference between an inadmissible positive utilitarianism and a tolerable negative utilitarianism − that which is not admissible when it is for the purpose on increasing the happiness of third parties, can be admissible in order to decrease a person’s suffering. I.e. the use of PGD in order to choose characteristics which the parents subjectively consider desirable is not acceptable, but is legitimate in order to prevent a serious (and thus objectively undesirable) illness in the unborn child (for a defence of the legal validity of negative utilitarianism, see Arthur Kaufmann, Filosofia do Direito, 2nd edition, Fundação Calouste Gulbenkian, Lisbon, 2007, pp. 258-263).
In homage to this principle of negative utility − avoiding a serious illness − the law restricts the use of PGD to a limited set of situations. In reality, under the rules laid down in Article 29 of Law no. 32/2006 PGD “is intended only for persons from families with alterations that cause premature death or serious illness, when there is a high risk of transmission to their descendants” (paragraph ), and presupposes a specific medical indication determined by the “current good practices” included among the “recommendations made by the Portuguese and international organisations in this area” (paragraph ). Among the medical indications that legitimate resorting to PGD, the legislator expressly mentions anueploidy (Article 28) and serious genetic illnesses (Article 28).
So the use of PGD is subordinated to a rigorous principle of subsidiarity, and is thus subject to conditions in terms of strong public-interest reasons linked to the protection of health (high risk of transmission of illness when genetic alterations that cause premature death or serious illness are concerned), which are assessed, apart from anything else, in accordance with a demanding criterion based on clinical practice.
The Law also expressly states that, other than under the exceptional conditions mentioned in Article 28(1), PGD cannot be used to select embryos in accordance with non-medical characteristics, or to choose the sex of the unborn child (Article 7) (in this sense, also see Maria de Belém Roseira, O processo de elaboração da Lei no. 32/2006, Legislação – Cadernos de Ciência de Legislação no. 45, January-March 2007, p. 59). What is more, breaching these rules involves criminal liability punishable by a prison term of up to two years or a fine of up to 240 days (Article 37).
On top of all this, PGD cannot be used in cases of multifactorial disorders in which the predictive value of the genetic test is very low (Article 7) – a rule that is very important, because it significantly restricts PGD’s scope of application. The fact is that multifactorial disorders (a third classic type of congenital illness – the other two being chromosomal anomalies and monogenic disorders) include the majority of the congenital anomalies and common illnesses in both children and adults, and excluding MAP techniques under these circumstances increases the subsidiary nature that must be attributed to them (see Rede de Referenciação Hospitalar de Genética Médica, Directorate-General of Health [DGS], 2005, p. 8).
Finally, Article 28(4) states that a MAP centre that wants to use PGD must possess or articulate its work with a multidisciplinary team which includes specialists in reproductive medicine, embryologists, and doctors who are also geneticists, cytogeneticists, and molecular geneticists – another requirement that helps ensure that PGD is used properly.
Given the legal regime we have just described, we must be of the opinion that PGD is a MAP technique which has a restricted application and is targeted at the detection of serious genetic anomalies in a way that makes it possible to reduce the number of cases involving abortion or the birth of persons with serious illnesses. The choice of embryos that results from PGD is thus compatible with the dignity of the human person (in the same sense, see Jorge Duarte Pinheiro, Procriação medicamente assistida, in “Estudos em memória do Professor Doutor António Marques dos Santos”, vol. I, Coimbra, Almedina, 2005, p. 770).
Indeed, the set of rules which our legislators have adopted follows the principles defined by the Council of Europe’s Ad Hoc Committee of experts on progress in the biomedical sciences (CAHBI) (see principle 1 of the Report on Human Artificial Procreation, as above, and the indications given in the Oviedo Convention, particularly those set out in Articles 12 and 14).
In the light of all the above we must conclude that PGD, as outlined in Articles 28 and 29 of Law no. 32/2006, does not injure the dignity of the human person, nor is it in breach of the provisions of Articles 25, 26, 67 and 68 of the Constitution.
j) Punishing reproductive cloning and permitting the technique of transferring a nucleus without reproductive cloning
The petitioners believe that Article 36 of Law no. 32/2006 does not impose penal sanctions on reproductive cloning performed within the ambit of medically assisted procreation, and that it is thus in breach of the international instruments which prohibit this – particularly the Additional Protocol to the Oviedo Convention on Human Cloning, Article 11 of the 1997 Universal Declaration on the Human Genome and Human Rights, and Articles 8, 9, 64 and 68 of the Constitution.
The norm which it is now of interest for us to analyse criminalises and punishes reproductive cloning as follows:
1 – Anyone who transfers an embryo that was obtained by means of the nuclear transfer technique, save when that transfer is necessary for the application of MAP techniques, shall be punished by a prison term of between one and five years.
2 – Anyone who transfers an embryo that was obtained by splitting embryos shall be subject to the same penalty.
As we can see, this is a norm which imposes a penal sanction in a way that covers both of the known cloning techniques (nuclear transfer, and splitting embryos), albeit paragraph (1) does open an exception with regard to the transfer of a nucleus “when that transfer is necessary for the application of MAP techniques”.
It is thus the constitutionality of this proviso to which the petitioners are seeking to refer, and which we must consider.
We know that various international legal instruments expressly reject reproductive cloning. This is the case of the Universal Declaration on the Human Genome and Human Rights (Article 11), and the Additional Protocol to the European Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Article 1). At the Community-law level the Charter of Fundamental Rights of the European Union, as published in Official Journal of the European Union no. C 303 dated 14 December 2007, also reaffirms the same principle (Article 3[d]).
According to UNESCO, there are currently no countries that authorise cloning with reproductive ends, albeit the applicable prohibition can take a variety of forms (National Legislation concerning Human Reproductive and Therapeutic Cloning, July 2004, pp. 2-3). In the legal orders that explicitly regulate this matter, the legislators have opted to criminalise the cloning of human beings. Such cases include the United Kingdom (section 3§3[d] and section 41§1[b] of the 1990 Human Fertilisation and Embryology Act), Germany (§6 of the Embryonenschutzgesetz), Italy (Articles 12 and 13[c] and  of Legge 19 febbraio 2004, n. 40), France (Articles L2163-1 to L2163-5 of the Code de Santé Publique), and Spain (Article 160 of the Código Penal, and Articles 1, 26[c][s.9], and 27 of Ley 14/2006).
There are also various Resolutions of the European Parliament which recommend that the Member States prohibit the cloning of human beings in all the different phases of their formation and development, without distinction as to the method used, and that they make provision for penal sanctions in order to punish breaches of this prohibition – see the Resolutions of 16 March 1989, 28 October 1993, 12 March 1997, 15 January 1998, and 7 September 2000 (Official Journal of the European Communities no. C96, dated 17 April 1989, p. 165; no. C315, dated 22 November 1993, p. 224; no. C115, dated 14 April 1997, p. 92; no. C34, dated 2 February 1998, p. 164; and no. C135, dated 7 May 2001, p. 263, respectively).
In harmony with the abovementioned uniform tendency on the part of all existing legislations to punish cloning, the need for penal protection in this area was confirmed by the International Association of Penal Law at its Congress in Vienna in 1989 (see Costa Andrade, Direito penal e modernas técnicas biomédicas: as conclusões do XIV Congresso Internacional de Direito Penal, op. cit., pp. 394 and 398).
However, and returning to the Portuguese case, there is nothing that would enable us to conclude that Article 36(1) of Law no. 32/2006 has excluded the criminalisation of reproductive cloning.
First of all, a literal interpretation of the precept shows that the proviso contained therein refers not to the need to resort to nuclear transfer as a MAP technique, but rather to the need to resort to nuclear transfer for the application of MAP techniques. As such, the letter of the norm indicates that the nuclear transfer is subordinate to the MAP techniques listed in Article 2, and particularly to those set out in the latter’s subparagraphs (b), (c) and (d). So it allows the nuclear transfer to serve as a means of applying the legally authorised MAP techniques with a view to achieving the ends permitted by Article 4(2); it does not allow that transfer to be, autonomously and in its own right, a MAP technique with which those objectives can be pursued.
Indeed, this is the understanding that is clearly derived from a systematic interpretation of the norm. The proviso made in Article 36(1) cannot cover situations involving true reproductive cloning, quite apart from anything else because Article 7(1) of the Law expressly prohibits it: “Reproductive cloning with the objective of creating human beings who are genetically identical to others is prohibited”.
It would not make sense to categorically prohibit reproductive cloning in Article 7(1) and simultaneously authorise it as a MAP technique in a later provision. Everything indicates that in Article 7(1) the Law employs a restricted concept of reproductive cloning, precisely because it seeks to exclude functional cell nuclear transfers – i.e. nuclear transfers whose objective is not to transfer to a woman cloned embryos which are genetically identical to one another or to a person who has already been born and which cannot lead to a reproductive cloning situation – from that concept.
This idea is also confirmed by the historical approach to interpretation.
The origins of Article 36 of Law no. 32/2006 are to be found in Article 34(1) of Member’s Bill no. 172/X, which reads as follows: “[the] implantation in the uterus of an embryo that was obtained by means of a nuclear transfer technique, save when that transfer is necessary for the application of medically assisted reproduction techniques, or of an embryo that was obtained by splitting embryos, constitutes a crime that shall be punished by a prison term of between one and five years”.
In the exposé of the reasons for the Bill, the authors explain that the proviso (when that transfer is necessary for the application of medically assisted reproduction techniques) “concerns cases of nuclear transfers that lead to two biological mothers, due to deficiencies in the cytoplasm of the woman who is to be held to be the natural mother”. As we can clearly see from the parliamentary debate, the intention behind the proviso – which transited to the wording of the paragraph (no. ) of Article 36 that is questioned by the petitioners – thus concerns cases in which an embryo is created from gametes from both parents, using a denucleared oocyte from a donor, and in which the result is the existence of an embryo that has both parents’ nuclear DNA, but which was partly created by means of a nuclear transfer, in order to avoid the risk of the transmission of a genetic illness linked to the cytoplasm of the mother’s gametes (see Series I of Diário da Assembleia da República no. 58/X/1, dated 22 October 2005, p. 2652, and no. 20, dated 16 November 2006, p. 59).
Strictly speaking, there is no reproductive cloning here, inasmuch as there is no intention to create a human being who is genetically identical to another one.
In short, the proviso contained in Article 36(1) can only be interpreted as covering cases in which the nuclear transfer is undertaken as a secondary technique that is subordinately necessary in order to apply the MAP techniques for which provision particularly is made in Article 2(b), (c) and (d), without undermining the prohibition contained in Article 7(1), which objectively applies to the MAP techniques that are used to create genetically identical beings.
As such, the norm contained in Article 36(1) of Law no. 32/2006 cannot be interpreted as not punishing reproductive cloning situations, and therefore does not consubstantiate a breach of the duty to protect the genetic identity of human beings with which Article 26(3) of the Constitution of the Portuguese Republic charges the State, nor does it breach any of the other constitutional precepts invoked by the petitioners.
l) The absence of punishment for unpaid surrogate maternity
Lastly, the petitioners argue that Article 39 of Law no. 32/2006 only sanctions paid surrogate motherhood, and that it says nothing about unpaid arrangements. To their mind this lack of any sanction reveals a permissive attitude towards surrogate motherhood arrangements, represents a risk for human dignity and other human rights, and “defrauds the law” because it contradicts the provisions of Article 8 of the same Law; and all this means that it conflicts with the provisions of Articles 25, 26, 67 and 68 of the Constitution and all the provisions of the Oviedo Convention.
The fact is that Article 39 criminalises entry into (paragraph ) and the promotion of (paragraph ) paid surrogate maternity contracts, but, in terms of penal sanctions, does not make any provision with regard to unpaid surrogate motherhood. This is the question of constitutionality which is raised at this point and which we must unravel.
First of all, it is necessary to say that we cannot see the petitioners’ arguments as concerning an unconstitutionality by omission. That which is at stake is not really the absence of a legislative measure designed to make a constitutional norm executable, but rather the possibility that there is an unconstitutionality derived from the alleged fact that our legislators failed to respect certain constitutional principles by excluding any punishment for unpaid surrogate maternity when they fulfilled the duty to legislate on the matter of medically assisted procreation with which they are charged by Article 67(2)(e) of the Constitution.
The first norm that we must address in our analysis of this matter is that contained in the aforementioned Article 8 of Law no. 32/2006. This precept clearly prohibits entering into binding legal arrangements for surrogate maternity services, irrespective of whether they are paid or unpaid, and qualifies them as null and void (paragraph ). In conformity with the rules governing nullity, paragraph (3) of the same Article clarifies the fact that “a woman who undergoes a surrogate pregnancy for someone else shall be held to be the mother of the child who is then born, for all legal purposes”. This regime does not display a permissive attitude towards surrogate motherhood on the part of the legislator, given that it denies this practice any legal effects and allows such cases to be subject to the filiation establishment rule set out in Article 1796(1) of the Civil Code, under which, where the mother is concerned, filiation results from the fact of the birth.
Nor do the petitioners’ arguments succeed when they say that the rules created by Article 39 defraud the prohibition set out in Article 8; this is because the legislators were coherent with the set of prohibitive rules they defined, and expressly provided for the effects of a breach of the prohibition against entering into surrogate maternity arrangements. The legislators opted to differentiate those effects depending on whether the arrangement is paid or unpaid: in both cases there is a civil effect (the arrangement is null and void), but in the second case there is also a criminal sanction.
In this matter there are certainly legal assets which are deserving of protection and are derived from the right to personal identity, the right to the development of personality, and also the right to the conditions needed for a full development.
However, legislators are not necessarily obliged to criminalise a form of conduct whenever they believe that there is a legal asset which is worthy of legal protection. When they fulfil the duties to protect legal assets, which (the duties) the Constitution creates when it enshrines a fundamental right, legislators always possess some leeway within which to freely consider the choice of the most appropriate means of guaranteeing an asset while respecting the other values and interests that enjoy constitutional protection in the light of the key principle of the dignity of the human person.
As Klaus Stern explains in detail when talking about the problem of the constitutional duties to protect legal assets: “The organs of the state are thus left a leeway for free decision in relation to the concrete fulfilment of the duties to protect. (…) To a large extent those duties are taken up by the law. As such, the legislator is the preferred subject of the duties to protect. (…) Only manifest errors in their considerations can be corrected by the courts” (Das Staatsrecht der Bundesrepublik Deutschland, Band III/1, Allgemeine Lehren der Grundrechte, München, 1988, pp. 950-952 [retranslated from the Portuguese translation]).
This leeway within which legislators are free to consider as they see fit expands when what is at stake is penal protection. Claus Roxin is of this opinion when he says: “Knowing whether a legal asset should be protected by criminal or civil and administrative means is fundamentally a matter for free consideration by the legislator” (Strafrecht, Allgemeiner Teil, I, 3. Aufl., Munich 1997, p. 24 [retranslated from the Portuguese translation]).
Here in Portugal Figueiredo Dias argues that “there are no implicit constitutional-law requirements to criminalise”, and only goes on to accept that the criterion adopted by the legislator can “be questioned with regard to constitutional law in flagrant cases” (Direito Penal: Parte Geral, Vol. I, 2nd edition, Coimbra, 2007, p. 129; for a similar view, also see Sousa e Brito, A lei penal na Constituição, in “Estudos sobre a Constituição”, vol. 2, 1978, Lisbon, p. 218).
The absence of a constitutional requirement for penal protection whenever a legal asset that enjoys constitutional protection is at stake has also been recognised in the jurisprudence of the Constitutional Court.
In this respect the Court has emphasised that “(...) in its role as a law that protects, penal law fulfils a function that can be described as ultima ratio. This means that its intervention is only justified by the need to protect legal assets and values and if it is not possible to resort to other social policy measures that are equally effective, but less violent than criminal sanctions” (Ruling no. 108/99); and so, as the Court also reflected in Ruling no. 99/02, “(...) penal measures are only constitutionally admissible when they are needed for, and appropriate and proportionate to, the protection of a given right or interest that is under the protection of the Constitution, and are only constitutionally required when what is at stake is the protection of a constitutional right, asset or value of the first rank and that protection cannot be sufficiently and suitably guaranteed in some other way”.
On the other hand, and as the Court also said in the latter Ruling, we cannot lose sight of the fact that “a finding of (un)constitutionality must not be confused with a finding in relation to the merit of the law, so it is not the place of the Constitutional Court to substitute itself for the legislator when it comes to determining the choice of political option as to whether it is necessary or appropriate to criminalise certain behaviours”.
In summary, while we accept that, “in the matter of criminalisation too, the legislator does not enjoy an unrestricted and absolute margin of freedom and must remain within the goalposts erected by the Constitution”, the truth is that “when, on the grounds of an alleged breach of the principle of proportionality, the Constitutional Court controls the respect which the legislator shows for this broad freedom to shape the law, the Court must only reprimand legislative options that are manifestly arbitrary or excessive” (the abovementioned Ruling no. 99/02, giving a firm jurisprudential guideline).
Returning to the case before us, it is necessary to bear in mind that punishing unpaid surrogate maternity is far from being consensual in the broad spectrum of comparative law.
It is true that this form of motherhood is prohibited in the great majority of countries, either by express legal provisions – as is the case in Spain (Article 10 of Ley 14/2006), Italy (Article 4 of Legge de 19 febbraio 2004, n. 40), and Germany (§17 of the Embryonschutzgesetz) – or by means of general clauses that render arrangements which are contrary to “good customs” or the “public order” null and void.
There are, however, countries with a western legal culture, such as Greece, the United Kingdom, Canada, and some US States, whose law authorises it (see Vera Lúcia Raposo, De mãe para mãe: Questões legais e éticas suscitadas pela maternidade de substituição, Coimbra, 2005, pp. 101-108). It is along these lines that there are some people here in Portugal who accept, de iure condendo, the possibility of unpaid surrogate maternity (in this sense, see Joaquim José de Sousa Dinis, Procriação assistida: questões jurídicas, in “Colectânea de Jurisprudência”, Year XVIII, 1993, Vol. IV, p. 13; Tiago Duarte, in «Vitro Veritas?» A procriação medicamente assistida na Constituição e na lei, op. cit., p. 90; and also Vera Lúcia Raposo, idem, pp. 128-129).
The Portuguese legislative authorities have adopted the latter position. In the abovementioned Article 8 of Law no. 32/2006 they have instead chosen the more generalised criterion of prohibiting surrogate motherhood, even when it is unpaid, thereby seeking to uphold the superior interest of the child and prevent conflicts that might endanger peace within the family.
Despite this, acting within their leeway to freely choose the best means with which to protect the legal assets involved, our legislators felt that they were able to renounce the use of penal protection. It seems that they began with the assumption that in such situations the civil provisions concerning the nullity of the arrangement and the way in which the maternal bond is determined would be sufficient.
Now, we need to bear in mind that – inasmuch as it displays altruism and solidarity on the part of the gestating mother towards the infertile woman, and because the latter is not guilty of a lack of respect for the dignity of the gestating mother, given that in such cases there is no attempt to turn a person who is financially hard up into an instrument by setting a “price”, as happens in situations involving paid surrogate motherhood – unpaid surrogate maternity tends to be seen as less deserving of criticism.
It seems clear that this matter lies within the legislative leeway to decide freely. The legislator can legitimately opt not to criminalise behaviours which, although they have results that are undesirable from the social point of view, are situated in personal and emotional contexts which are so complex that it becomes difficult to subject them to too harsh an overall judgement in the terms that always underlie such judgements where penal sanctions are concerned.
Nor is it possible to conclude – as the petitioners do – that our legislators have been permissive in relation to the matter of surrogate motherhood. The fact is that, as we have already noted, in addition to declaring that all legal arrangements whose object is surrogate maternity, including unpaid ones, are null and void (Article 8), the law establishes a set of civil rules for determining maternity that is totally incompatible with this practice and eliminates any practical effect which, despite the legal prohibition, might result from a surrogate contract (Article 8).
Given the above, we conclude that the legislative option not to autonomously criminalise unpaid surrogate maternity is not deserving of reprimand in constitutional terms.
III – Decision
On the grounds set out above, the Constitutional Court sitting in Plenary hereby decides:
not to declare Law no. 32/2006 of 26 July 2006 formally unconstitutional due to a breach of Article 115 of the Constitution;
not to hear the request to review the legality of Law no. 32/2006 on the grounds that it is in breach of Articles 166 and 167 of the Rules of Procedure of the Assembly of the Republic;
not to hear the request to review the legality of Law no. 32/2006 on the grounds that it is in breach of norms contained in conventional international law;
not to declare the unconstitutionality of the norms contained in Article 4(2), in Article 6, in Article 7(3) conjugated with Article 30(2)(q), in Article 9(2) to (5) conjugated with Article 30(2)(e) and (g), and in Articles 10, 15(1) to (4), 19(1), 20, 21, 24, 25, 27, 28, 29, 36 and 39, all of Law no. 32/2006 of 26 July 2006.
Lisbon, 3 March 2009
Carlos Fernandes Cadilha
João Cura Mariano
José Borges Soeiro
Ana Maria Guerra Martins
Joaquim de Sousa Ribeiro
Mário José de Araújo Torres
Maria João Antunes (with concurring opinion)
Carlos Pamplona de Oliveira (with concurring opinion)
Maria Lúcia Amaral (dissenting, in part, as per the attached opinion)
Benjamim Rodrigues (dissenting, in part, as per the attached opinion)
Rui Manuel Moura Ramos
I voted against declaring the unconstitutionality of the norms contained in the Articles of Law no. 32/2006 of 26 July 2006 that are listed in subparagraph (d) of the Decision, without prejudice to the fact that I am not entirely in accord with the grounds concerning: Article 7(3) taken in conjunction with Article 30(2)(q) – resort to medically assisted procreation in order to treat serious illness in a third party; Article 9(2) to (5) taken in conjunction with Article 30(2)(e) and (g) – research with resort to embryos; Articles 24 and 25 – non-creation of excess embryos; and Articles 28 and 29 – preimplantation genetic diagnosis. Specifically, I do not support the part of the grounds for decision that calls on the “principle of the dignity of the human person, to the extent that even though it has not been implanted, the embryo is capable of leading to the existence of a human life”; the “potential human dignity” of “embryos which are usable in scientific research”; the “principle of the dignity of the human person, bearing in mind that the embryos in question have not been implanted in the mother’s uterus and cannot be awarded a degree of protection that would correspond to the protection afforded to either human or intrauterine life”; and the “dignity of the human person”.
The norms contained in those Articles presuppose embryos that have not been implanted in a uterus (not yet implanted, or by now unimplantable) and exist as the result of a technique for which the Constitution makes express provision (Article 67[e]), which is used in cases of infertility, to treat a serious illness, and/or to eliminate the risk of transmission of an illness with a genetic or infectious origin or some other illness (Article 4 of Law no. 32/2006) – i.e. in constitutionally admissible situations (Articles 26, 36 and 64 of the Constitution). On top of which, in the specific case of research using excess embryos, we have the pursuit of interests that are protected under the terms of Articles 42(1) and 64(1) of the Constitution.
This is enough for a finding of constitutionality, without distancing ourselves from the understanding set out in point 5.a of the Grounds for Decision.
Maria João Antunes
The point on which I diverge from the majority can be summed up as the interpretation of the petition with regard to the absence of any penal punishment for entering into unpaid surrogate maternity contracts.
The petitioners argue that Article 39 of Law no. 32/2006 only sanctions paid surrogate maternity, and says nothing about arrangements for which there is no charge; in their opinion this lack of any sanction reveals a “permissive attitude towards the surrogate maternity arrangements, represents a danger to the dignity and other rights of the human being, and constitutes a fraud against the law, inasmuch as it is in conflict with Articles 25, 26, 67 and 68 of the Constitution and all the provisions of the Oviedo Convention”.
The prevailing understanding in the Ruling is that what was at stake was not the absence of a legislative measure intended to make a constitutional norm executable, but rather the question of the material unconstitutionality of the abovementioned Article 39 of Law no. 32/2006 that was said to derive from the circumstance that, when they fulfilled the duty to legislate on the matter of medically assisted procreation which is imposed on them by Article 67(2)(e) of the Constitution, our legislators did not respect certain constitutional principles when they excluded any punishment for unpaid surrogate maternity.
With due respect, I believe that the criticism made by the petitioners is not aimed at the norm contained in Article 39, but rather at the circumstance that the Law does not contain a penal norm with the same content that punished another typified form of conduct – unpaid surrogate maternity. In reality, no accusation is levelled against the norm contained in the aforesaid Article 39; on the contrary, what the petitioners say is that the penal reprimand should also extend to cases of unpaid surrogate maternity, failing which there would be a breach of “Articles 25, 26, 67 and 68 of the Constitution”. What this means is that the petitioners believe that the said precepts of the Constitution impose a duty on the legislator, such that when the latter legislates on the matter of medically assisted procreation, the legislation must establish a penal punishment for unpaid surrogate maternity – a duty that was not fulfilled in this case.
I thus interpret the petition in the sense that it invokes the omission of a legislative measure of a penal nature intended to render the aforementioned constitutional norms executable.
Indeed, although it says that its starting point is an interpretation of the petition such that the latter is invoking the material unconstitutionality of the norm contained in Article 39 of Law no. 32/2006, the Ruling immediately goes on to analyse the question from the point of view of a constitutionally intolerable legislative omission, which it counters by restating the absence of any implicit constitutional-law requirements to criminalise. It supports its position with reference to the Court’s jurisprudence, which it quotes with regard to the absence of any constitutional requirement for penal protection whenever a legal asset or value that enjoys the Constitution’s protection is at stake.
In short, I believe – unlike the view stated in the Ruling – that this part of the petition is founded on the denunciation of an unconstitutionality by omission.
The importance of this distinction lies in the fact that Article 283 of the Constitution reserves the power to ask the Constitutional Court to consider and verify the unconstitutionality by omission of the legislative measures needed to render constitutional norms executable to the President of the Republic, the Ombudsman, and the Presidents of the legislative assemblies of the Autonomous Regions. This enables me to conclude that the petitioners cannot ask the Constitutional Court to consider this alleged legislative omission.
Although I do not disagree with the decision on this point, I nonetheless voted that the Court should not hear this matter with the grounds set out by the petitioners.
Carlos Pamplona de Oliveira
1. There are three fundamental points in relation to which I dissented from the direction which the Court took by a considerable majority. First, as regards the content the Court saw fit to attribute to the principle of safeguarding the dignity of the human person, as referred to in Article 67(2)(e) of the Constitution; second, with regard to the Court’s interpretation of the scope of the protection offered by the norm contained in Article 24(1) of the Constitution; and finally, in relation to the Court’s finding of the constitutionality of the norms which Law no. 32/2006 lays down in relation to research with resort to embryos (Article 9 to ).
2. The issue by the ordinary legislator of a set of rules that discipline medically assisted procreation techniques represents fulfilment of the constitutional requirement to regulate derived from Article 67(2)(e) of the Constitution. As the Court says in the Ruling, two essential consequences derive from this order to regulate. First of all, through it the Constitution immediately resolved the generic problem of the admissibility, depending on their parameters, of MAP techniques (or of the specific legislative regulation of those techniques); but in addition to this, the constitutional legislator made it clear that this did not mean that the Constitution “recognise(d) a right to every form of procreation that is possible under the current state of the technique, and in principle excluded forms of assisted procreation that injure the dignity of the human person”. Determining what constitutes an “injury to the dignity of the human person” thus appears to be one element in the correct understanding of the constitutional order to regulate. Given that this order was issued with a view to the imposition of a specific binding obligation on the legislative authorities, the delimitation of its scope (and thus inversely the delimitation of the scope of the space in which the legislator is free to shape legislation) is not possible without attributing a certain substantial – however small – meaning to the expression safeguarding human (…) dignity. However, in my opinion the Court’s arguments were constructed on the basis of the absence (and not the necessary presence) of this substantial meaning.
The fact is that the only thing which was said in this respect was that the dignity of the human person, as a “foundation” of the Republic and thus as a criterion for the legitimacy of political power (Article 1 of the CRP), possessed an “objective dimension”, and therefore could not in its own right serve as grounds for a subjective legal position; and that as such it would be valid as an instrument that is useful when it comes to implementing and delimiting the content of fundamental rights, thereby granting the “system” underlying Part I of the Constitution a unicity of meaning, value and practical concordance. So the Court determined the prescriptive scope of the principle, but said nothing about the content of the prescription itself.
It is understandable to be prudent and parsimonious when one tries to make a principle which, like this one, implicitly bears a very strong axiological load (perhaps – and this explains its founding scope – the strongest axiological load in the system of constitutional principles), more concrete; but it is one thing to be prudent and something else to be silent. I believe that by opting for silence – and by doing so in a domain in which the literal text of the Constitution means that the latter was demanding that it take another path – the Court wove an argument which left the resolution of two essential questions in the dark.
First, the question of knowing in what way the dignity of the human person can be “used” in the implementation and delimitation of the content of fundamental rights. The legislative regulation of MAP techniques affects rights – invoked throughout the journey taken by the Ruling’s argumentation – which need to be balanced and weighed against one another. If we accept that the meaning of the order to regulate contained in Article 67 of the Constitution is limited to precisely that – to giving the principle of dignity the scope of an interpretative instrument designed to help the process of determining the relative weight of other rights or principles – the truth is that even so the principle would only become operative if one were to know in what way it might contribute to the “implementation” and “delimitation” of the content of other fundamental legal norms. Faced with the Court’s silence as to any other substantial meaning that might be attributed to it, this question of the “way” remained unresolved, to the detriment – to my way of thinking – of the clarity of the interpretation and weighing-up methods employed in the collective finding.
But, besides the fact that the Court has not clarified the objective outlines which the principle is thought to possess, the exact scope of its subjective application also remains to be made clear. At one point the Ruling says that, with the prescriptive scope that was given to it, “safeguarding the dignity of the human person” refers to the people who intervene in MAP processes, and the people who are born following application of the corresponding techniques. But during other steps in its journey it also seems to have taken into account the “dignity” of the embryo, invoking that dignity as an element to be weighed up in the face of other rights that can be mobilised in the present case. In my opinion this invocation would be understandable if the Court had at least referred to the oldest and most consensual definition of “dignity” – that derived from Dürig’s so-called “object formula”, which the Court has in fact mentioned in other cases and which, in a necessarily rough summary of its meaning, can be confused with the prohibition of a Kantian type of instrumentalisation. However, given that nothing was said in this respect, we remain without clarification as to whether, for what reason and with what scope embryos are also (in addition to people) included in the scope of the subjective application of the “dignity” clause.
In addition to this, the reasons for my dissent also include everything the Court said with regard to the scope of the protection afforded by the norm contained in Article 24(1) of the CRP.
3. It is very well known – and I will not go into this subject in more depth – that the constitutional norms which enshrine fundamental rights do not just possess subjective dimensions. They do not limit themselves to providing subjective structures that incorporate rights which their holders can invoke in their relations with the State or the community; what is more, they express the constitutional legislator’s decision to objectively protect certain legal assets and values as basic structural components of the whole infra-constitutional order, in such a way that when faced with such assets and values – and even if there is no subjective expectation on anyone’s part – the ordinary legislative authorities are obliged to shoulder certain duties to protect. If this is the case in relation to any constitutional-law rights, it is also true with regard to the norm contained in Article 24(1): the constitutional concept of life that lodges there does not have to be outlined in accordance with the undisputed existence of some subject that serves to support it.
Despite acknowledging that, even if they have not been implanted, embryos are capable of leading to the existence of a human life, the Court felt that it could not apply the guarantee of the protection of human life, as a legally protected asset, to them, precisely because what is at stake is an “existence” that has not yet been implanted. This means that the Court defined the constitutional concept of life – the same concept that, as we have seen, possesses first and foremost an objective implication – in the following restrictive way: the frontier that separates life and non-life (and consequently the frontier that separates the “territory” in which there must be some protection provided by the State and the Law, from the “territory” in which there is no protection) is constituted by the different, intra- or extra-uterine, location of the embryo.
This is not my understanding. I have no difficulty in recognising – and without thereby accepting unproven value theories – that between “potential life” and “actual life” there is an unquestionable scale of values; but this does not justify saying that for the purposes of determining the corresponding constitutional concept and the objective scope of the protection afforded by the norm contained in Article 24 of the Constitution, potential extra-uterine life is something that lies outside the protection – which is founded in the Constitution and is thus required – of the State and the Law. Apart from anything else, because such a conception would restrict the possibilities of shaping Bio-Law, or the Law of Bioethics as it is also known, in an entirely groundless manner.
The fact is that if one believes that everything which happens between an embryo’s creation and its implantation in the uterus is constitutionally irrelevant – inasmuch as if it is not supported by the objective protection of the legal asset “life”, where else in the constitutional system can the process be of importance? – then one will also believe that the key decisions in relation to the appearance of life and to the decisions on the resolution of the conflicts of interest that may arise from those decisions must be regulated only, and freely, by the ordinary legislative authorities, who, in a space in which there is no constitutionality, will not count on anything other than themselves in order to be able to supervise and order science and techniques. Given that the regulation of such decisions, and the resolution of the conflicts that may arise from them, are topics that fall within one of the core areas of “concern” in the Law of Bioethics, the definition which the Court has attributed to the constitutional concept of life ends up limiting the possibilities of shaping this branch of the Law, which, in this respect and without any grounds for this to happen, finds itself deprived of the protection provided by Constitutional Law.
It is our self-representation as a species which is at stake in Bioethics. The Court felt that unimplanted embryos could remain outside the scope of that self-representation. I have been unable to understand why, and I cannot agree with the Court’s position.
4. Finally, I disagreed with the Court’s finding with regard to the norms contained in Article 9(2) to (5) of 32/2006, on research with resort to embryos.
Paragraph (1) of this Article says – and in doing so reproduces the provisions of Article 18 of the Oviedo Convention – that “The creation of embryos via MAP with the deliberate objective of their use in scientific research is prohibited.”
For anyone who is of the opinion that all embryos (including unimplanted ones) are the object of the protection granted by Article 24(1) of the CRP because they cannot be outside the constitutional concept of life, the provisions of Article 9(1) of the Law do not correspond (cannot correspond) to a free choice on the part of the legislator. And this is not just because the Portuguese State is bound by an international obligation to which it committed itself by means of a convention; it is first and foremost due to a constitutional imperative that obliges the State, in the first place via the legislative authorities, to protect the asset “life” from an instrumentalisation which degrades it to the status of an object, a mere means to achieve an end, or a replaceable measure. The fact that the “end” is the freedom of scientific research (Article 42 of the CRP), or the implementation of the right to health (Article 64) does not in its own right justify the use of any means whatsoever. Here, the “dignity” to which Article 67(2)(e) of the Constitution refers displays the true subjective scope of its application: MAP techniques must not be used to create embryos with the deliberate intention of subjecting them to scientific research projects, because this would imply an “instrumentalisation” that goes against the provisions of Articles 24(1), 67(2)(e) and 1 of the Constitution.
As such, we must assess whether the system derived from Law no. 32/2006 adequately complies with this constitutional prohibition. In other words, it is necessary to know whether this system results in a protection for the embryo that is adequate in the light of its possible or eventual creation for research purposes.
Now, in this respect the legal system contains two fundamental decisions which, as the Ruling acknowledges, are not common in comparative law.
The first is that which results from Article 24 of the Law. Here, as the Ruling says, our legislators did not follow the criterion – frequently adopted in other legal orders – of a numeric limit in order to determine the number of embryos that are to be created in an in vitro fertilisation. What the law says in this field is that “only the number of embryos considered necessary for the success of the process must be created, in accordance with good clinical practice”. I will not discuss the correctness of the Portuguese choice in relation to this point. The fact is that abandoning the technique that is commonplace in comparative law (that of indicating specific numbers), and replacing that technique with a general clause related to good clinical practices (the number deemed necessary for the process to succeed), legitimately creates the space needed to investigate the protection which the law affords to embryos which are referred to as being excess or supernumerary, or which it was not necessary to transfer to the mother’s uterus. Article 25(1) says that they are to be cryopreserved. However, it is precisely these embryos which, when “it is not possible for them to be involved in a parental project” (Article 25), can be used for scientific research purposes (along with embryos which are “unviable” under the terms and for the reasons provided for in Article 9[b] and [c]).
The solution contained in Article 24 of the Law thus provides for a natural questioning of the fate of embryos that are not transferred, and it does so in precisely the terms that the Law then goes on to set out.
In the knowledge that the legal solution naturally entails an added risk of the existence of excess embryos – and consequently the same risk of adding to the number of embryos which, because it is not possible for them to be involved in a parental project, can be used in scientific research projects – it would be natural for the legislator to assume that risk and turn it into a narrowing of the rules governing the admissibility of experimentation and research projects. A narrowing, at least, in relation to the paradigms that are dominant in other legal orders close to our own. However, the truth is that this is not what happened. To reach this conclusion, it suffices, for example, to compare Article 9 of Law no. 32/2006 to Article 15 of the Spanish Law, or to Article L-1215-5 of France’s Code de Santé Publique (not to mention other examples, such as the German, Italian and Norwegian laws). I will not go into a description of each of these regimes. What does seem certain to me is that the Portuguese regime stands out because, contrary to the others, and apart from procedural limits like the informed consent of the potential parents and the requirement for the National Council on Medically Assisted Procreation to consider and decide on each project, it only contains a substantial limit on research projects on embryos. The substantial limit is that referred to in Article 9(3) of the Law: that “it must be reasonable to expect that it (the project) may result in a benefit for humanity”.
The question that poses itself is thus knowing whether a legislative system which, where the question we have just analysed is concerned, is structurally founded on two general clauses – (i) the number of embryos to be created is that needed for the process to succeed; (ii) projects that involve experimentation on embryos are admissible as long as it is reasonable to expect that they will result in a benefit for humanity – grants embryos adequate (and constitutionally required) protection against an instrumentalisation for research purposes. My final conviction in this respect is no, and I therefore dissented from the majority decision when it came to this point as well.
Maria Lúcia Amaral
1 – In my dissenting opinion I am in agreement with the remarks which Justice Lúcia do Amaral makes in relation to the content that the Ruling sees fit to attribute to the principle of safeguarding the dignity of the human person, and to the interpretation which the Ruling makes with reference to the scope of the protection afforded by the norm contained in Article 24(1) of the Constitution.
2 – I voted against the majority view in relation to the part of the rule set out in Articles 9(4)(a) and 25(5) of Law no. 32/2006 that permits scientific research on cryopreserved embryos when three years have passed and it has not been possible to involve them in a parental project. I did so because the Law does not set the objective conditions against which this possibility must be assessed, and I support the remarks which Justice Lúcia do Amaral makes with regard to the fate of the embryos.
3 – I voted against the majority view in relation to the part of the rules contained in Article 15(1) to (4), taken in conjunction with those set out in Article 10(1) and (2), both of Law no. 32/2006, which subjects the ability of persons who are born via MAP to find out the identity of the donor to the need to bring a lawsuit and to the existence of weighty reasons for breaking the confidentiality rules.
The legislator opted to make it the rule that donors of sperm, oocytes and embryos must be anonymous, even in relation to the person who is subsequently born via MAP, and then to construct a whole graded system of exceptions to this rule.
The Ruling does not see any breach of constitutional norms or principles in this option. In summary, it takes this view on the basis of the understanding that when one weighs up the opposing constitutional rights and values, “it does not seem that we should consider it constitutionally inadmissible for the legislator to create the conditions needed to safeguard the peace and privacy of family life, without interference from third-party donors who, in principle, only sought to assist in the formation of a family”.
I am with the Ruling when, basing itself on legal theorists from whom it quotes, it expresses the opinion that one could say that “up to a certain point, the right to personal identity possesses a heterogeneous content” and includes “different types of faculty, and the domain in which they are protected is not absolutely uniform, with the possibility that its intensity differs depending on the type of situation in question”.
Except that the heterogeneity of the normative content and the possibility of differentiating the intensity of the constitutional protection are not factors that only operate in relation to the right to personal identity and the right to the development of personality of persons who are born via heterologous MAP; they also operate with regard to the other fundamental rights and values that can be called upon in order to define the constitutional-law situation of the other parties who intervene in a MAP process, such as the right to the privacy of personal life and the right to form and peacefully live as a family.
As such, the immediate question is knowing what the concrete normative contents of the fundamental rights that appear to be on a collision route with one another are, and the degree of intensity that each one of them appears to possess (see José Carlos Vieira de Andrade, Os Direitos Fundamentais na Constituição Portuguesa de 1976, 2nd edition, p. 316). Having said this, in the process we must bear in mind that, notwithstanding the fact that the axiological root of such fundamental rights is the principle of human dignity, medically assisted procreation must be regulated “in such a way as to safeguard the dignity of the human person”, because this is expressly required of the legislator by Article 67(4) of the Constitution.
The situation of persons who are born via MAP is protected by the fundamental rights to personal identity and to the development of personality enshrined in Article 26(1), as well as by – in one of its certain meanings – the guarantee of genetic identity provided for in paragraph (3) of the same Article.
The right to personal identity is the right to “everything that characterises each person as an individualised unit which differentiates itself from every other person by a certain personal life experience” (see Jorge de Miranda and Rui de Medeiros, Constituição Portuguesa Anotada, vol. I, p. 284).
To this extent personal identity cannot fail to involve knowing the natural history of one’s biological bonds, the history of the relationships that have been lived with other people, and the relationships with oneself and with nature.
But, of the various faculties provided by this right, we cannot fail to point to the history of one’s biological bonds as something that corresponds to a content which is lacking protection in immediate terms.
The protection of identity is certainly not limited to this aspect, but, as an element of the first rational basis for the formation of one’s personal identity, it does doubtlessly incorporate one of the primary contents of the right, and one that becomes all the more important as a person acquires the rational capacity to ask him/herself about his/her origins.
This is why the right to go beyond what the law says about knowing who one’s parents are and actually knowing who one’s biological mother or father is, is included in the aforesaid right to personal identity.
Besides requiring a broad protection of personality, which is made up of a vast range of faculties that form part of a variety of fundamental rights, in our Constitution the right to the development of personality primarily includes a right to the formation of one’s own personality.
Now, if there is a structural aspect of the formation of personality, it is knowledge of one’s natural human origin. The right to the truth is something that is inscribed in the dimension that makes human nature what it is.
So where a person who is born via MAP is concerned, what is at stake is a primary or structural content of the right to the development of personality.
One would say that this right also protects the position of both the beneficiaries of a donation of sperm, oocytes or embryos, and the donor him/herself.
Of the beneficiaries, because it will enable them to achieve their plans to have children and thus to have a nuclear family.
Of the donor, because it will enable him/her to satisfy his/her spirit of solidarity and of genetic continuity.
Now, while there is no doubt that the Constitution recognises the right of anyone who can beget them to have children (Article 68), I cannot see that it recognises any fundamental right on the part of people who can only obtain them via third-party donation, given that the State can neither require third parties to provide the latter, nor fulfil it directly itself.
On the other hand, while it is true that the implementation of plans to have children falls within the faculties that are included in the right to the development of personality, we cannot fail to recognise that this right is achieved by begetting a person, and that it is intolerable for the protection of the rights of the person who is born to be enslaved to the rights of the person who decided he/she should be born, thereby depriving him/her of essential knowledge about the truth of his/her being.
On top of which I do not see how the rule that a donor must be anonymous should be imposed as something that is necessary in order to safeguard the peace of the family. Given that the ability to resort to heterologous procreation is dependent on the informed consent of its beneficiaries, including that of the male spouse or whoever occupies the same position, they possess all the information about the donation. Knowing the donor’s identity is consequently irrelevant to the peace between them.
Here too the content of the right of the beneficiaries of the donation to the development of personality is less extensive and, above all, demands less intense protection.
When it comes to the donor, the dimension of the right to the development of personality that is at stake in this situation is the right to the privacy of personal life.
However, given that what is in play is a faculty to participate in the promotion of heterologous medically assisted procreation, and even if we accept that that promotion can be seen as fulfilling a public interest, this promotional dimension of the right cannot make other rights give way when what is at stake is their primary content.
In addition to all this, philanthropic behaviour only deserves protection to the extent that it still corresponds to the fulfilment of a public interest; and, where the desire for genetic continuity is concerned, I am unable to see that it must warrant constitutional protection.
So, inasmuch as a behaviour whose effects are limited to the sphere of the donor’s person is not the object of protection, but rather is reflected and manifested in the begetting of another person, who possesses autonomous rights, I conclude that this right must not be able to restrict the abovementioned rights of that other person.
When weighing up all these factors in overall terms – as is required in order to reach a judgement that will decide a conflict between fundamental rights – it is my opinion that the legislator could only construct a system that began with the rule that donors should not be anonymous.
The reductions which the legislator has made in the knowledge of the donor that is available to the person who is born with resort to medically assisted heterologous procreation go beyond the limit of a harmonisation of the various rights that are in conflict; they possess the nature of a restriction on the right to the personal identity and to the development of the personality of the person who most deserves the Constitution’s protection – the person who comes to be born; and they attain the nature of a functional restriction in favour of the other conflicting rights, because consent is only given to revelation of the donor’s identity when the court believes that there are weighty reasons to breach his/her anonymity.
The requirement to resort to the courts to render effective the essential or structural content of the fundamental right to personal identity and to the development of the personality of a person who is born via MAP, and the requirement that there be “weighty” reasons for constitutional protection to be granted, are manifestly disproportionate when confronted with the normative contents of those fundamental rights of the other persons who intervene in the MAP process which are at stake here.
As such, the legislator was not entitled to adopt the rule of practical concordance that in fact ensued.