In vitro fertilization was invented to help people who want to have children but who do not have this opportunity. Recently, taking into account the increasing trend towards the use of artificial insemination the moral and ethical issues of this topic are increasingly becoming the subject of litigation. Since the judicial practice has little experience in this matter throughout the post-Soviet states the court judgments on IVF are mainly taken with an orientation toward such cases at the European Court of Human Rights.
Within the IVF process obtaining more embryos than required for transplantation is a normal phenomenon. The emerging regular disputes about acceptability of various manipulations with them often relate to such topics as the rights of the embryo. Due to the fact that today there is no single point of view around the world concerning whether the embryo is a subject of legal relations or the subject of various disputes such trials cause unprecedented excitement in the media.
A vivid example was the trial for the embryos of two former spouses from the city of Cherkessk in the Russian Federation. After an unsuccessful attempt of IVF in 2016 the couple had 6 embryos for cryopreservation. Young people could not stand the test and decided to break up. At property division there was a dispute about the future of frozen embryos. According to the agreement on cryopreservation signed by them termination of storage of embryos and their utilization were carried out at the request of one of the spouses.
This right was used by the man who appealed to the center where the embryos were stored with a request to terminate their storage and ban participation in donor programs. The former spouse responded to this by filing a claim in which she asked to recognize the actions of her husband as invalid. The embryo case caused a wide discussion and once again raised the issue of legal status of the embryo. In these proceedings the Cherkessk court equated embryos to the subject of the dispute based on the materials of the case of Natalie Evans to the United Kingdom where in a similar situation the European Court of Human Rights satisfied the demands of the former boyfriend of Natalie to dispose of biological material.
Judicial proceedings related to in vitro fertilization where the subject of the dispute is money are rather often. Women who failed to get pregnant after the IVF procedure sue to recover funds from clinics where the procedure was performed. The most frequent arguments in such cases are those about insufficient information on the possible consequences from IVF specialists, improperly selected preparations, doses, wrongly chosen methods of artificial insemination – IVF, Ixia, IVF + Ixia and others, which led to an unsuccessful attempt of IVF.
The second most popular are the charges with accusation of IVF medical error because of which there was a confusion of biological materials and during the fertilization or transplantation “non-native” cells were used. In such situations plaintiffs ask to compensate for significant moral damage, in some cases to deprive the medical institution of a license.
To avoid such situations a couple deciding to resort to IVF procedure should carefully select a clinic. It is also necessary that the contract is properly drafted and that the legal adviser competent in these matters is consulted with.
IVF for convicts is one of the unusual lawsuits that were recently considered in the Russian Federation (the case of Veronika Koroleva) and before that in other countries of the world. The essence of the requirement is to allow the authorities to carry out in vitro fertilization to the wives of convicted men. In the whole world only a few cases are known when the court has satisfied such claims of the plaintiff. The argument is the civil right of every person to have offspring.
This gap in the legislation is broad enough as there are no clear criteria for determining the possibility of such a procedure for persons serving sentences in detention facilities. It seems like it is a right but it’s practically impossible to implement it. In such cases the way out is the use of donor sperm, often it is the ejaculate of the relatives of the convicted husband.
It is logical to assume that when a person is forced to turn to ART a similar decision carries a certain extent of suffering. Accordingly, various kinds of disputes on this topic are sometimes shocking. But such are the realities and it is risky to close one’s eyes to them. It is better to have information and be prepared for all possible consequences.