Greece recently completed the legislative regulation of issues regarding the use of methods for medically assisted human reproduction by introducing two particularly innovative laws (3089/2002 & Law 3305/2005) that concentrate on the protection of both the interest of the child that will be born and the constitutional rights of a person to have children. The aforementioned laws regulate cases in which married couples, cohabiting couples and single or unmarried women can have children as well as they regulate matters of surrogacy, posthumous artificial insemination, the age limit for women undergoing assisted reproduction procedures, the number of fertilized oocytes allowed to be transferred in the endometrial cavity, the anonymity of donor and receiver in case of donation of genetic material as well as a large number of other issues which were so far lacking a regulatory framework. In this article, we will analyze in a concise manner the most crucial parts of these laws.
Married as well as cohabiting couples can resort to modern methods of artificial insemination (no minimum period of cohabitation is necessary as it is recorded in other countries) under the condition that the last ones will give their consent with a notarial act, before the treatment starts, in the notary public. This notarial act has the effect of voluntary recognition in order to secure that the born child will have both biological and legal parents. In other words, when the child will be born, no voluntary or judicial act of recognition will be necessary since the matter will have already been dealt with by means of the said notarial consent, which is given before the assisted reproduction procedure is carried out.
The Regulation of Surrogacy in Greece
Since 2002 the altruistic gestational surrogacy is legal in Greece after a special permission of the court. Surrogacy is regulated in Article 1458 of the Greek Civil Code introduced with article 8 of the Law 3089/2002: Article 1458. The transfer of a fertilized ova into the body of another woman (the ova should not be hers) and the pregnancy by her is allowed by a court authorization granted before the transfer, given that there is a written and, without any financial benefit, agreement between the couple who wish to have a child and the surrogate mother. The court authorization is issued after an application of the woman who wants to have a child, provided that evidence is adduced not only in regards to the fact that she is medically unable to carry the pregnancy but also to the fact that the surrogate mother is in good health and is able to conceive. Three years after the regulation of surrogacy, Law 3305/2005 (“Enforcement of Medically Assisted Reproduction”) was introduced.
Women who wish to have a child through surrogacy will have to file an application to the court that will issue its decision after establishing that the following requirements are met:
- The woman filing a claim and wishing to have a child is not physically competent of having one.
- The woman offering to be the surrogate mother is healthy and able to carry a pregnancy as well as she will undergo a thorough psychological evaluation.
- The embryos implanted to the surrogate mother do not belong to her but to a third party – donor or to the woman wishing to have the child. In this way, the legislator wished to rule out the possibility of full surrogacy in motherhood (namely, the possibility of the woman carrying the pregnancy to be the biological – genetic mother of the child as well).
- All involved parties (including the spouse of the surrogate mother, if she is married) consent in writing that they wish to undergo the specific procedure, and that there is no financial benefit from it. This consent need not be made before a notary public; it may very well be a private document.
- The woman wishing to have a child as well as the person accepting to carry the pregnancy are both permanent residents of Greece. It is noted that their “residence” and not their “nationality” is the criterion laid down by the legislator. The court’s session takes place in closed doors in order to protect the privacy of the interested parties. If the court finds that all the above mentioned requirements are met, it issues its decision.Only after the relevant court authorization allowing the implementation of the assisted reproduction technique has been issued, can the doctor proceed with the corresponding medical procedure. The law stipulates that the “mother” of the child born “shall be the woman to whom the necessary court authorization was issued” and not the woman who carried the pregnancy and gave birth to the child. Finally, let it be noted that, based on the said court decision, the Registrar of Births shall register as mother of the child the woman who wished to be medically assisted in reproduction and to whom the said court decision has been issued.Consequently, this has a wide appeal to Greek society given the fact that it provides all the necessary guarantees required by the persons who resort to this method of assisted reproduction.
- The ambiguity of the Law 3089/2002 regarding the maximum age limit of women subjected to artificial insemination procedures has been finally dealt with and explicitly regulated by the Law 3305/2005, which stipulates that medical assistance is permissible up to the natural reproductive age of women, namely until the age of fifty.
- A novel element of this law is the provision pursuant to which, assisted reproduction procedures can be performed on underage persons by exception and only on grounds of “a serious disease that may entail fertility risks and in order to guarantee the possibility for child bearing”. In this case, both parents must consent to the cryopreservation of the genetic material, even if only one of them is awarded custody of the child; in the case of a minor of fifteen years of age, the minor must also consent to this.
Mandatory medical screening
Pursuant to the law, it is mandatory to undergo medical screening in order to eliminate the possibility of HIV-1 & HIV-2 viruses, hepatitis B & C and syphilis prior to being subjected to an assisted reproduction treatment.
Number of embryos
For the first time in Greece, the law now stipulates explicitly the exact number of fertilized oocytes that may be transferred to the endometrial cavity “up to three fertilized oocytes to women up to forty years old and up to four fertilized oocytes to women over forty years old”. However, the exact number of fertilized oocytes transferred to subsidiary groups of assisted persons may be defined by a decision of the Authority depending on the age and medical status of the assisted persons.
Posthumous artificial insemination
Posthumous artificial insemination is allowed (both to married and cohabiting couples) following a prior court authorization, if both of the following requirements are met:
- If the spouse or the partner of the woman who wish to have a child suffered from a disease that either could affect his fertility or puts in danger his life.
- If the spouse or the partner of the woman had consented with a notarial document for posthumous artificial insemination.
The law stipulates explicitly that the aforementioned procedure can be carried out six months after the death of the husband/partner and before two years have been completed since he passed out. If both of the previous requirements are met, it is guaranteed by law that the born child will have both a biological and a legal father when at the same time the child’s hereditary rights will not be annulled although the child will have not only been born but also conceived after the death of their father.
By examining the current regulatory framework regarding the modern techniques of medically assisted human reproduction, somebody will, undoubtedly, realize the will of the legislator to assist couples or people resorting to artificial fertilization techniques but at the same time to guarantee the interest of the child that will be born through the use of such medical techniques.