Artificial Reproduction Technologies and Conflict of Laws: An Initial Approach
| Author | Anastasia Grammaticaki-Alexiou |
| Position | Associate Professor of Private International Law |
| Pages | 1113-1121 |
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Associate Professor of Private International Law, Department of International Studies, School of Law and Economics, University of Thessaloniki, Greece.
The turn of the century is witnessing many "revolutions" which are attributable to the extremely rapid evolution of science and technology. The human brain, having found the ideal servant in computers, is able to produce impressive results in a much shorter time than ever before. One such "revolution" is the result of the astonishing developments in reproductive technology which take place in laboratories. It is no more an exaggeration to say that man has managed to direct the evolution of life. And while medicine and biotechnology are running at a high speed, the law crawls on all fours, sweating and struggling to catch up. Due to this scientific progress, new situations occur, and it is rather doubtful whether old legal rules can successfully regulate certain problems that were unimaginable in the past.
A considerable volume of legal writing, mostly originating from the United States, has been devoted to the legal issues raised by the progress of biotechnology in the fields of assisted reproduction1 and surrogate motherhood.2 Both represent contemporary developments in family building that depart from the models humanity has been experiencing through the ages. Their discussion usually covers several branches of substantive law, such as family law successions, constitutional law, human rights, and criminal law. So far, extremely little attention has been paid to the problems created by reproductive technologies in a world where the everyday private life of individuals, due to their mobility, may be linked with more than one jurisdiction. In other words, the issues related to the conflict of laws in this field have been more or less neglected.3 But the simple fact that laws treating such matters differ from state to state or from country to country and that the presence of foreign elements may prevent the courts from applying their domestic rules, Page 1114 makes such a discussion necessary. The variety and novelty of the problems that may occur render it fascinating.
This contribution is intended to serve as an incentive for further discussion. It will examine only a few problems of the general theory of conflict of laws, as it is understood in continental Europe, such as the incidental question, characterization, mandatory rules and public policy, as they may be utilized in assisted reproduction cases connected with more than one legal system. Actually, these problems are harder and of more importance than those belonging to the special part of conflicts: it is their solution, not always easy, that leads to the appropriate conflicts rule. Once there, one will deal with the rules for contracts (e.g., in case of a surrogate motherhood agreement), torts (e.g., in negligence for safekeeping frozen sperm or embryos), family issues (e.g., disavowal by father of child born after artificial insemination of mother) or succession (e.g., capacity of posthumously reproduced child to inherit). A brief outline of the usual methods of assisted reproductive technology as well as of surrogate motherhood, which is often linked with it, is necessary as a starting point.
Due to infertility, many people are unable to fulfill their desire to produce offspring. Their growing numbers, combined with the solutions offered to them by biotechnology, have caused a considerable growth in the assisted reproductive technology market. More and more couples as well as single persons find the answer to their prayers in medical laboratories. The usual methods involved are (a) artificial insemination, (b) in vitro fertilization, often combined with cryopreservation and (c) surrogate motherhood.
Artificial insemination is one of the oldest methods of assisted reproduction. It is the method mimicking nature: a woman's ovum is fertilized by the artificial delivery of semen in her vagina or uterus. The semen may be that of her husband (homologous, AIH) or that of a donor (heterologous, AID), or a combination of the two (AIC). It may also be fresh or frozen. To this technique, one must add the gametes intrafallopian transfer (GIFT), where ova and sperm are placed together in the fallopian tube for fertilization.4
In vitro fertilization (IVF) is the medical procedure which involves mixing semen and ova in a test tube or petri dish. The preembryo that may be formed is transferred to the woman's womb or fallopian tube (ZIFT) or is frozen and stored to be implanted later. The gametes used may be those of the couple, but often either the ova or the sperm or both may be donated by third persons.5 Cryopreservation is the process by which sperm or embryos are frozen and banked at very low temperatures for future use. It is quite often the complementary element o IVF.
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To the above techniques one might add artificial procreation through cloning, effected by (a) the artificial division of the fertilized egg to more viable parts, (b) the removal of the nucleus from one embryo and the replacement of it with a nucleus from another embryo or person or (c) the removal of a DNA sample from a living or deceased person and its transplant into the nucleus of another egg or embryo. This technique, however, has only been experimental so far and has not been used for the creation of human beings. However, Britain has already granted a patent covering cloned early stage human embryos and the United States is assessing the situation.
The technique of surrogate embryo transfer (SET) which involves the removal of an embryo from a surrogate by uterine lavage and implantation in another woman's uterus should also be mentioned. It resembles the donation of ova, except that the egg is first fertilized in the donor's body, usually by artificial insemination.
A much debated way for a woman who cannot or does not want to gestate to become a mother is surrogate motherhood. Another woman offers to gestate the embryo produced either by IVF of the woman's egg using her husband's or a donor's sperm, or by artificial insemination. Sometimes the surrogate mother's motives may be clearly altruistic, as it happens between relatives, but the usual case involves paid surrogate motherhood.6
Inevitably these techniques touch upon the delicate matters of human reproduction, human rights, personal relations, famil, property and successions. Each state or country may regulate such matters in a different way,7 adopting a restrictive or hospitable attitude, or choose not to regulate them at all. The issues which may be raised belong to several areas of private and public law.
The technique which is less expected to give rise to problems is artificial insemination with fresh sperm. If the husband's sperm is used, medicine is only assisting by imitating nature and no more disputes can occur than those in regular fertilization, with the exception of tort claims for negligence on the part of the doctor or hospital. Theoretically, if a donor's sperm is used, a paternity claim might follow. But usually the donor is unknown and such claims are rare.
However, if the sperm is frozen several things may happen:
(a) The husband who has provided the sperm dies. His widow wants to be inseminated posthumously. Should a dead man become a father?
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(b) The man dies and...
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