European accomplishments in regulation of the family status of the child conceived by artificial reproduction technologies

In: Stanovništvo: Population = Naselenie, Band 53, Heft 2, S. 1-19

Abstract

In this paper, the author analyzes family status of the child conceived by
artificial reproduction technologies using the following treatments:
homologues artificial insemination, heterologus artificial insemination
(artificial insemination by donor), ovum donation, embryo donation and
surrogate motherhood. One specific situation of homologues artificial
insemination is posthumous insemination, insemination after the death of the
husband/partner. This procedure is allowed in, for instance, United Kingdom,
but not allowed in France, Switzerland, and Italy. Considering genetics
elements in this situation there is no doubt on fatherhood - father is a man
whose sperm is used for insemination, regardless of the fact if frozen sperm
or frozen embryo is used in the procedure. Nevertheless, until 2008 in United
Kingdom, the husband/partner was not considered as legal father, because of
the fact that the child was born after his death. Heterologous artificial
insemination could be used in three different situations. First, when
subjects are spouses or unmarried partners of different sexes. Second, when
subjects are spouses or unmarried partners of the same sex and the third if a
single woman is an only subject. Most recent procedure is the one in which
subjects are spouses or unmarried partners of the same sex, specifically two
women. This procedure is allowed in the United Kingdom and Sweden. In these
legislatures, there is a rule that the woman who delivers the child is legal
mother, and her spouse/partner is a second parent of the child. The most
recent procedure of egg donation is a donation of only a part of an egg,
mitochondrial DNA. In this case, there are in fact three genetic parents of
the child: two genetic mothers and a father. Legally, the child has one
mother (the woman who delivers a child) and a father. One of potential
outcomes of the recent research is the ability to create human embryo without
any male genetic contribution - by transferring the nucleus of a somatic cell
from one woman into an enucleated egg of another. In that case, the child
would not have genetic father at all. Bearing in mind the new artificial
reproduction technologies and their influence to legal rules of establishment
of the family status of the child, it could be said that the legal principle
of the autonomy of the parties is widened in comparison to material truth.
People who wish to be parents become legal parents although they are not
generic parents. Sometimes they cannot be genetic parents due to their
infertility and sometimes because they are of the same sex. As a result of
artificial reproduction technologies, a child could have a genetic link with
one of the parents, only with a mother - in the heterologous insemination,
only a father - as in egg donation and genetic surrogacy. The child could
have genetic link with both of the parents - as in the gestational surrogacy,
or it could have no genetic links with his/her legal parents - as in embryo
donation. According to some European legislatures, it is possible for the
child to have a mother and the other female parent, or a father and the other
male parent. Surrogate mother, as well as donors of the genetic material, are
not considered as parents. Radical change in social and individual perception
of parenthood could accept the fact the child could have more than two
parents with different roles (biological - genetic parents, gestational
mother, social - legal parents).