A court ruling allowing a woman to transfer an embryo created with her former husband, despite his opposition, is thought to be the first of its kind in Poland.
During their marriage, the couple had created two viable embryos via IVF, of which one was transferred and resulted in the birth of a child, while the other remained frozen. Following the divorce, the husband initially agreed that the embryo could be transferred, but later would consent only to disposal or placing it for adoption.
The ruling in the Radom District Court was based on Polish law regarding fertility treatment, which allows for judicial authorisation to transfer an embryo when one party withholds consent. The court said: 'Since the embryo has already been created … the law treats the embryo as a conceived human life, which is subject to special protection and cannot be destroyed'.
The ex-husband cited relationship breakdown and concerns about raising the child within a single-parent environment as his reasons for denying consent for the transfer. He also referred to the problematic prospect of sibling relations, and the embryo's lack of legal entity, in addition to declaring that he did not want to have another child. He also claimed that his ex-wife wanted to transfer the remaining embryo only due to her religious beliefs.
The ruling states that it was the husband who 'suggested undergoing an in vitro fertilisation procedure and urged the [wife] to do so'. As such he 'should bear the consequences of his decisions and try to be the best father to the child, and not deprive the existing embryo of the right to life, and the biological mother of the possibility of giving birth to her own child'.
The woman's case was supported by the Ordo Iuris Institute for Legal Culture, a conservative organisation that decided to offer assistance in accordance with their view that 'priority should be given to the child's right to life'.
'The Institute provided legal assistance to the mother in this case because, while there is no doubt that [IVF] is an unethical method with low effectiveness and which dehumanises children, in this particular situation we were dealing with a procedure that had already begun, where the child, frozen in liquid nitrogen, was waiting for a chance to be born' said Paweł Szafraniec of the Ordo Iuris Process Intervention Centre.
The woman's representatives also provided further arguments which stated that by donating his sperm for the IVF treatment the ex-husband must have, or at least should have, realised that the resulting viable embryos will have been intended for transfer and proceeding with pregnancy. They emphasised that the assisted reproduction process allows sufficient time to withdraw either parent's consent for fertilisation prior to conception.
IVF remains controversial in Poland: state funding for fertility treatment was withdrawn by a conservative regime in 2015, and only reinstated last year (see BioNews 831 and 1217). The Court's decision to prioritise the embryo's right to life over one parent's reproductive choice may have broader implications for future legal frameworks around assisted reproduction in the country.
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