Medically assisted procreation
Right to dignity
Right to life
Right to physical and psychological integrity
RULING Nº 101/2009
3 of March of 2009
The fact that a group of citizens takes the first step towards the holding of a referendum does not in itself constitute the existence of a draft referendum, inasmuch as their initiative must be considered by the Assembly of the Republic, and if admitted thereby, can only go ahead by decision of the President of the Republic. There is thus no requirement to suspend an ongoing legislative process with the same subject matter as the initiative – a suspension that only occurs in the event that a draft referendum is presented by the Assembly of the Republic or the Government.
The solutions that the Portuguese legislative authorities have adopted in the law governing medically assisted procreation (MAP) are compatible with the requirement to respect the dignity of the human person.
In addition to formal questions concerning the non-suspension of the ongoing legislative process and also an alleged lack of compliance with the Rules of Procedure of the Assembly of the Republic, a number of issues were raised in relation to material defects in the law. These involved:
1 – The acceptability of the use of MAP techniques in cases involving a risk of transmission of diseases with non-genetic or non-infectious origins.
2 – The absence of any provision for a maximum age limit for recipients of MAP treatment.
3 – The use of MAP to treat serious illness in a third party.
4 – The use of embryos in research.
5 – The acceptability of heterologous procreation.
6 – The question of knowing donor identity.
7 – The rules governing filiation in heterologous reproduction.
8 – The requirement not to create excess embryos, and the general prevention of multiple pregnancies.
9 – Pre-implantation Genetic Diagnosis (PGD).
10 – The allegation that the law does not provide for any punishment for reproductive cloning in certain circumstances, and that the technique of transferring a nucleus without reproductive cloning is acceptable.
11 – The fact that although surrogate maternity without payment is considered illegal, there is no criminal punishment for it.
In all these cases the Court considered that there was no infringement of material constitutional limits that would make the solutions adopted by the Law unconstitutional. The essential content of the principle of respect for the dignity of the human person is not injured in any way. The other constitutional rights and values which the applicants alleged have been undermined – particularly the rights to physical and moral integrity, to personal identity, to genetic identity, to the development of personality, to the protection of the privacy of personal and family life, to form a family, and to health – have been sufficiently taken into account.
The Court felt that there has been enough respect for the principle of precaution to safeguard the essential content of the rights that might be violated. Even though an analysis of comparative law shows that the options the ordinary legislative authorities adopted when they weighed up the various rights at stake differ from solutions that have been chosen in a number of other legislations, those options cannot be condemned from a legal/constitutional point of view.
The Court looked at the questions of the acceptability of the use of MAP techniques in cases involving a risk of transmission of diseases that are not of genetic or infectious origin, the absence of any maximum limit on the age of recipients of the treatment, the use of the technique to treat a serious illness in a third party, and the use of embryos for research purposes. It said that the legal system before it does not give rise to any effective risk that medically assisted procreation techniques might be used for purposes which can be criticised from an ethical perspective, and that the legislative authorities have taken care to create safeguard mechanisms which ensure the preservation of the rights at stake, and especially an adequate protection of embryos.
On the question of heterologous procreation – i.e. the use of the medically assisted procreation technique that implies resorting to donor gametes and to a donation of embryos that raises the issue of the right to genetic identity – the Court felt that the latter right is not affected, because it especially refers to the intangibility of the genome and the unicity of each person’s genomic makeup, and essentially requires the prevention of the genetic manipulation of the human being and cloning, and not the prevention of heterologous procreation.
On the question of filiation in heterologous reproduction and the applicants’ allegation that the law injures the right to know one’s parentage and for parentage to be acknowledged, because it admits single-parent births and does not impose any sanctions for failing to comply with the rule that every child has two parents, both of which would be unconstitutional, the Court felt that inasmuch as the law permits medically assisted procreation, and assuming that MAP does not in itself breach the right to personal identity, it does not make sense to contest the legal paternity criterion derived from the provisions of the law. “[I]n heterologous assisted procreation, it is not reasonable to insist on the biological criterion... The bond of filiation must be…. formed in relation to the beneficiary of the MAP who did not contribute his reproductive cells to the process, on condition that he gave his valid consent to the formation of the bond. This is all the more true in that he played a key causal role in the birth. It was his decision that began the process of procreation”. The Court also said that the filiation rules match the principles which the Council of Europe’s Ad Hoc Committee of experts on progress in the biomedical sciences set out in relation to this issue in 1989.
On the subject of the need to avoid the creation of excess embryos, the Court said that the rules before it (which are set out in the chapter on in vitro fertilisation) do not breach any constitutional limits. The Court accepted that “embryos can only be created” by “inseminating oocytes, and that it is only permitted to inseminate the number of oocytes (and thus create embryos) that are needed for the success of the medically assisted procreation process, in the light of good medical practice and the couple’s clinical situation.
The ordinary legislative authorities consequently based themselves on a principle of need, which must be assessed in accordance with a medical criterion and from the perspective of a minimum intervention based on a calculation of probabilities. This makes it impossible to interpret the law in any way that would permit the arbitrary creation of embryos, given that it is not possible to be unaware that the fertilisation process is linked to the goal of procreation.
The Court also noted that, as the National Council of Ethics for the Life Sciences (CNECV) acknowledges, in principle it is not possible to guarantee an absolute match between the number of embryos created and the number of embryos transferred to the uterus.
Turning to the general prevention of multiple pregnancies, and the alleged violation of the right to the protection of health on the grounds that the law permits the implantation of more than one embryo in the mother’s uterus, with the ensuing risk of multiple pregnancies and situations in which foetuses are deformed, the Court noted that even though the law does not place a maximum limit on the number of embryos that can be transferred, it only allows “the creation of the number of embryos deemed necessary to the success of the process, in the light of good clinical practice”, and also subjects the insemination of oocytes in each case to “the couple’s clinical situation” and the need to ensure the “prevention of multiple pregnancies”.
The applicants also argued that the legal rules governing pre-implantation genetic diagnosis (PGD) are unconstitutional. They alleged that this diagnosis is intended to produce human beings who are selected in accordance with predetermined qualities, and thus constitutes a manipulation that is contrary to the dignity, integrity and unique and unrepeatable identity of the human being. The Court ruled that the use of PGD as a diagnostic investigation technique “is not in breach of fundamental ethical principles”, and can offer positive value from an ethical perspective: “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 will lead to premature death and prolonged and irreversible suffering”; or “when, following medical assessment, it is shown that at least one of the progenitors carries a hereditary genetic alteration that causes serious illness”; and also, in the light of a principle of solidarity, when “PGD is used to select embryos that will donate stem cells in order to treat a fatal disease in a family member”.
In relation to the alleged absence of criminal punishment for reproductive cloning and the acceptability of the technique of transferring nuclei without reproductive cloning, the Court felt that there was nothing in the law that would permit the conclusion that it does not criminalise reproductive cloning.
The literal text of the rule in question indicates that a nucleus can only be transferred for the purpose of making PGD techniques viable, and then only when the PGD techniques in question are themselves authorised by the law; the law does not say that nucleus transfers can be autonomously used as a PGD technique in their own right.
On the issue of the absence of any criminal punishment for unpaid surrogate maternity, the law does criminalise both being a party to, and promoting, paid surrogate maternity contracts, but does not provide for penal sanctions for unpaid surrogate mothers. The legislative authorities opted to differentiate between the legal effects in these two situations, depending on whether the arrangement is remunerated or not: in both cases there is a civil law effect (the nullity of the arrangement), but in the second of the two there are also criminal sanctions.
The Court considered that while the legislative authorities are not necessarily obliged to criminalise a given form of conduct, whenever they consider that there is a legal asset or right which deserves the protection of the law they do possess a degree of freedom to consider their choice of the most appropriate means of guaranteeing that asset or right, while simultaneously respecting the other values and interests which the Constitution protects in the light of the key principle of the dignity of the human person. The Court therefore considered that there was no unconstitutionality in that omission.
Two concurring opinions and two partially dissenting opinions were attached to this Ruling. The former are in agreement with the overall decision, although they partially differ from the majority on the grounds for it.
The first partially dissenting opinion raises some important underlying issues – particularly in relation to the concept of life to which the opinion’s author felt the Ruling subscribed. She said that this concept determines the frontier that separates life from non-life by the different location – intra-uterine or extra-uterine – of the embryo, and only qualifies the former situation as life. While the author recognised the value scale on which “potential life” and “actual life” occupy different positions, she disagreed with the majority understanding because she considered that at the end of the day the Court’s definition of the constitutional concept of life limits the possibilities that Bioethical Law, which is thus deprived of the support of Constitutional Law, has to shape legislation. The opinion’s author also raised questions about the content of the principle that the dignity of the human person must be safeguarded, and others concerning the acceptability of research that uses embryos. The author said that inasmuch as the law has not adopted the criterion of a numeric limit on the number of embryos that can be created during the in vitro fertilisation process, but rather that which results from the general clause on “good clinical practice”, and while she accepted that projects involving experimentation on embryos should be permitted on condition that it is reasonable to expect that they will result in a benefit for humanity, the law does not give embryos the adequate (and constitutionally required) protection against an instrumentalisation for experimental purposes. She said that this instrumentalisation is not justified by the goal of the freedom to engage in scientific research, or that of implementing the right to health.
In addition to subscribing to the arguments put forward in the first dissenting opinion, the author of the second one also raised the question of the principle of the donor’s anonymity and the extent of the exceptions thereto. He considered that a correct balance between the different constitutional rights involved would have led to a system based on the principle that the donor should not be anonymous.
We should also note that the Ruling makes various references to comparative law.