It is hardly believable that Poland had to wait for its first comprehensive piece of legislation on infertility treatment until as late as 2015. Until then, infertility treatment in Poland took place in a legal void due to the lack of regulations regarding reproductive medicine. The assisted reproductive technology (ART) centres carried out their activities based on the general medical law in force at that time, with personalised contracts signed by patients on a case-by-case basis. This situation posed a potentially serious threat to patients, as there was no mechanism for controlling the quality and safety of treatment in ART centres.
The Act on Infertility Treatment adopted in 2015 significantly improved patient safety. However, it was debated in Parliament in an atmosphere of tension and fear that ultraconservative politicians may try to steer the law in the direction of banning ART treatment involving in vitro created embryos altogether. Hence, the law when it was finally passed introduced a number of restrictions that are discriminatory and even violate human rights.
One of the unacceptable provisions of the Act is the introduction of compulsory embryo donation either 20 years after they have been created or after the expiration of the contract for their storage. This means that regardless of the wishes of the 'donors' – that is the woman and the man whose gametes were used to create an embryo – that embryo is automatically transferred to anonymous recipients after a maximum of 20 years. In Poland only anonymous donation of gametes and embryos is allowed, therefore people whose embryos are donated do not even receive information as to whether a pregnancy was achieved from their embryos or whether a child was born thanks to them.
What can people with embryos in storage do?
Currently people who have embryos created as a result of an ART procedure can:
- Use them (by transferring them to a uterus), provided that both partners who were providers of the gametes consent.
- Keep them in a storage bank for a maximum of 20 years, paying for their storage.
- Voluntarily donate embryos before the statutory term by both parties giving informed consent to donate the embryos to anonymous recipients.
Regardless of these options, after 20 years after an embryo has been created it is automatically transferred for donation, even if the 'donors' still pay for its storage. Other options available in many European countries, such as directed donation, transfer to a research institution, or discarding the embryo are not legally permissible in Poland.
Absolute protection of the embryo over donor rights
The Polish Act on Infertility Treatment enforces absolute protection of the embryo. The regulations prohibit the destruction of embryos capable of development into a fetus under any circumstances. The reasoning underlying compulsory donation was to make it a remedy for situations in which clinics are left with 'abandoned' embryos that no one wants to use. The current regulations therefore place the preservation of and the 'right to transfer' the embryo above the rights and decision-making capability of the providers of gametes used in its creation. This poses a situation that is contrary to basic human rights, which should guarantee people undergoing the ART procedure the right to decide independently about the fate of their genetic material.
The current legal status contradicts several international conventions, in particular, Article 8 of the European Convention on Human Rights that grants everyone right to respect for private and family life and Article 54 of the Substances of Human Origin (SoHO) regulation which states that any donation of SoHO must be voluntary and unpaid. It is also contrary to the prevailing point of view of current bioethics.
Embryo export – the only option to avoid mandatory donation
For those who do not consent to the mandatory donation of their embryos, the only option is to transfer them outside Poland to another jurisdiction. In countries such as the Czech Republic, the UK, or Spain, donors have the right to decide on the disposal of embryos that will not be used for transfer.
However, not every couple is able to transport embryos to another country. There are financial barriers and logistical difficulties, not to mention the very detailed provisions of the regulation of the Minister of Health on the transport of embryos, that make this undertaking a challenging task. In particular, the export must be via a monitored medical transport with every step of the procedure meticulously documented. The embryo transfer services are not covered by the public health insurance under the National Health Fund and all expenses must be covered by patients themselves.
The case of single women – dual legal block
Single women who began treatment before the new law was passed in 2015 have found themselves in a particularly difficult situation since its introduction. The law stipulates that only heterosexual couples – married or cohabiting – have the right to fertility treatment in Poland. Moreover, the new law was retroactive, meaning single women who had their embryos created with donor sperm and stored in ART centres lost the right to use them and to decide about their fate. Now, their only option to undergo embryo transfer in Poland is to attend the clinic with a male partner.
Effectively, single women who had embryos created before 2015 – because in the pre-existing legal void ART centres usually allowed such patients to undergo infertility treatment – do not have a legal right to have them transferred and at the same time their embryos will be obligatorily taken back and transferred to donation after twenty years of storage. Currently, embryo transfer abroad remains a viable option for single women that would like to use their embryos for treatment or simply discard them. This, however, is expensive and not something that every patient can afford.
The need to amend the law
The current regulations on compulsory embryo donation in Poland raise serious legal and ethical concerns. At the introduction of the law, they were intended to appease ultraconservative politicians promoting the personhood of the embryo, but at the end of the day, they severely impaired the freedom of patients to decide on the fate of their own genetic material. Thus, there is an urgent need to amend the law to ensure respect for donor rights and compliance with international human rights standards.
Unfortunately, there is no political appetite in Poland for discussion of the long overdue amendments to the Act. The only positive change since the dissolution of the ultraconservative Law and Justice Cabinet in late 2024 has been the reintroduction of the public health insurance funding of ART procedures. The pressing matter of the embryo's status, as well as some other obvious flaws in the existing legislation, are still awaiting resolution.
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