FILIATION AND ASSISTED REPRODUCTIVE TECHNOLOGY. HERNÁN F. CORRAL Professor, Family Law, Universidad de los Andes (Santiago de Chile) - PDF

FILIATION AND ASSISTED REPRODUCTIVE TECHNOLOGY HERNÁN F. CORRAL Professor, Family Law, Universidad de los Andes (Santiago de Chile) (Trabajo publicado en Revue Générale de Droit (U. de Ottawa), Nº 31 (2001),

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FILIATION AND ASSISTED REPRODUCTIVE TECHNOLOGY HERNÁN F. CORRAL Professor, Family Law, Universidad de los Andes (Santiago de Chile) (Trabajo publicado en Revue Générale de Droit (U. de Ottawa), Nº 31 (2001), pp ) And parent? questioned the D.H.C. There was an uneasy silence. Several of the boys blushed. [...] One, at last, had the courage to raise a hand. 'Human beings used to be...' he hesitated; the blood rushed to his cheeks. 'Well, they used to be viviparous.' [...] 'In brief', the Director summed up, 'the parents were the father and the mother. [...] These facts are unpleasant, I know. But most historic facts are unpleasant.' (Aldous Huxley, Brave New World, Chap. II) ABSTRACT This article deals with the various filiation issues arising from the application of assisted reproduction techniques. The author asserts that assisted reproduction thechniques produce a dissociation between the blood and genetic elements of procreation and peoples s will to become parents, which causes hard judicial dilema in paternity suits. Legislative and judicial criteria developed both under European and American legal systems to solve this case are systematized in the article, wherein the author directs criticism to those criteria that tend to undermine the natural physiology of human reproduction in spite of the intent of reproduction concept. This latest concept is criticized as being a form of contractualization of filiation links. The author suggests that a deeper understanding of the human dignity, and of the international standard of the best interest of the child should be useful to protect children from being a part of the new market-of-human-beings that could arise from the massive application of assisted reproduction techniques. TABLE OF CONTENTS I. Technoreproduction and dissociating effect II. Biologism or voluntarism: what does being a parent mean? III. Criteria for legislation or judgment 1. The genetic element 2. The element of affection 3. Prior lawfulness or unlawfulness of the technologies 4. Analogy with adoption 5. The best interest of the child 6. The so-called 'intent to reproduce' IV. Problems and cases 1. Matrimonial filiation: determination and contesting 2. Non-matrimonial paternity of the consenting male 3. 'Donation' of embryos conceived in vitro 4. Actions by a third-party gamete donor 5. The child's rights vis-à-vis the 'donor of gametes' 6. Post mortem fertilization 7. Surrogate motherhood V. Reforms to chilean and argentine legislation 1. The new art. 182 of the chilean civil code 2. The draft argentine civil code of 1998 VI. Towards 'contractual' filiation? VII. The value of human dignity and the child's best interest: key notions I. TECHNOREPRODUCTION AND DISSOCIATING EFFECT Louise Brown, the British girl whom the press called the first test-tube baby , because she was the first human being ever to be conceived by means of in vitro fertilization, is now 21 years old. It was in 1978 that the eyes of the world were opened to the possibility of resorting to methods of fertilization that replaced sexual intercourse between spouses as a mean of ensuring offspring. After two decades the procedures involved have multiplied and reformed into a wide array of modes, resulting in serious challenges, juridical as well as ethical. The question of admissibility and the legal correctness of such procedures, as well as the way in which they are to be allowed, regulated, or perhaps prohibited under civil law is still far from settled. In 1996 massive destruction of embryos, a necessary outcome of British legislation that provides for disposal of frozen embryos after five years (Art. 14.4, Human Fertilization and Embryology Act, 1990), caused worldwide commotion. Today, current developments in cloning techniques by nuclear transplant offer the latest challenge to the conscience of mankind as to the objective and generalizable ethical criteria for assessing the justice or injustice of the new forms of human reproduction technologies. If we had to summarize in one word the fundamental effect of such reproductive procedures, we would choose the word dissociation. These methods began by dissociating two dimensions that until then had been indissolubly bound together: sexual union and capacity for generation. The exact opposite of contraception, medically assisted reproduction seeks the child as the outcome of a series of technical processes not including conjugal union. It is, as Jerôme Lejeune said, making children, without making love. 1 The dissociating connotation of assisted reproduction does not end there; it also separates the child just conceived (call it what you will: zygote, fertilized egg, pre-embryo) from the natural protection of the mother's womb and turns the child into laboratory material. It appears understandable that under such circumstances the value of the human dignity of that diminutive being should go unappreciated or unrecognized, becoming exposed to the hazards of disposal for lack of viability or quality, preservation in cold nitrogen to aid new experiments, or vivisection to utilize its cells and tissues. Thirdly, dissociation also similarly affects the links binding the child thus conceived to the participants in the reproduction process. In the event of applying so-called heterologous technologies , meaning procedures involving utilization of male or female gametes of persons other than the would-be parents, fatherhood or motherhood is dissociated from the resulting child. Beyond the provisions of law or the rulings of judges, the child's nature as a child is split: socially and legally, it may be the offspring of someone who did not contribute in physical terms to its constitution as a human being. The intervention of a gestational mother brings in an additional dissociating element, for this separated two elements peculiar to the biology of reproduction, i.e. the genetic contribution and the gestational contribution. Thus a child, at least hypothetically, might have as many as five possible parents, namely the man and woman who desire the child's birth, the donor of the male gamete contributed and the woman who donated the egg to the process, and finally the mother who bears the child. Two possible fathers, three possible mothers. Not to mention that the gestational mother may be married and her husband's paternity presumed, thus raising the number of possible parents to six: three fathers, three mothers. What began apparently as a merely instrumental procedure intended to achieve the therapeutical aim of overcoming infertility, is now revealed rather as a new concept of man's image and of how a family is constituted, as well as paternal or maternal relations. Human cloning -though universally condemned from the Vatican to the Council of Europe to the White House following the episode of Dolly, the sheep- is no longer looked on in scientific circles as a deviation to be forbidden but rather as a means of treatment for illness in adults. Production of tissue not rejected by the recipient has suggested that an ideal method would be to produce a blastomere from a donated egg into which the genetic nucleus of a mature cell of the patient is introduced. By reprogramming the nucleus and obtaining totipotent cells from the blastomere, these cells may be differentiated to produce the tissues or organs needed. 2 Some might argue that 1 J. LEJEUNE, Qué es el embrión humano?, Rialp, Madrid, 1993, p Cfr. D. SOLTER and J. GEARHART, 'Putting Stem Cells to Work', in Science, Vol. 283, No. 5407, March 5, 1999, pp ; also A. TROUNSON and M. PERA, 'Potential benefits of cells cloning for human medicine', in therapeutic results are obtained at the expense of sacrificing an embryonic human being; however, the logic of dissociation, which, as I have attempted to show, directs assisted reproductive medicine, merely sees there another milestone in its progress. The starting point is when it is considered ethically acceptable to separate sexual contact from accepting a child as a person. We are close to admitting the utilitarian production of human beings who can hardly call their cloned predecessors father or mother. It is thus the dissociating element applied to the relations between generator and generated which leads the jurist to reflect and examine the way in which Law, understood not as a mere technique for social organization but as the art of what is just and what is good, must resolve the problems of filiation. This problem does not appear to exist, though others do, when assisted reproductive technologies are used with genetic material from the couple who desire the child, with no intervention of third parties contributing gametes or gestational services. II. BIOLOGISM OR VOLUNTARISM: WHAT DOES BEING A PARENT MEAN? Filiation is a term we use to designate the relation between a parent and his or her children, without realizing that when we speak of parent and child we are taking for granted the notion of filiation. This is tautology. It seems to me that no one questions that filiation is not primarily a juridical, but a natural relation, in the sense that it precedes the law. At the same time, this relationship is covered by Law for familial and social reasons, and various effects, rights, obligations, and liabilities arise therefrom. From a legal standpoint, the dichotomy between natural and legal filiation has clouded the conceptualization of filiation for a long time. Reproduction, Fertility and Development, Vol. 10, 1998, pp Strong criticism arose in the seventies over the way in which 19th-century Codes provided for juridical acceptance of filiation. The preference granted to legitimate filiation was contested, most particularly the fact that the content of filiation was purely formal and depended on the condescendence of the father. The provision whereby only the husband, in his lifetime, might contest paternity of adulterine offspring, wilfully keeping up a false fatherhood, was deemed unjust. Another much-criticized point was that investigation of paternity was closely restricted, while the law favored acknowledgement, either express or tacit (by means of notorious possession) as a way to determine illegitimate filiation. The reform of filiation Law, which began in Europe in the late seventies and has extended almost worldwide, privileges biological truthfulness as one of its core principles. That is to say, the blood tie constitutes and reveals filiation, and should be recognized in Law, over and above other interests (e.g. family peace, marriage stability, etc.). The so-called juridical progressiveness of the time, raising high the banners of biology, promptly ran into embarrassing difficulties. The emergence of assisted reproductive technology with the aid of third parties did not appear easy to harmonize with the principle of 'biological truth', which must lead to determination of the paternity or maternity of the donor of gametes. Former critics of the formality of the Napoleonic régime began to find that, at least in certain cases, the formal element should come before biological truth, and that legal father might be different from biological parent. 3 It is worth noting, however, that a gross inconsistency remains unresolved: whereas in natural reproduction filiation is constituted by the biological element of bloodline descent, in medically assisted reproduction, filiation aims to rest on this element of biological reality. Thus it does not seem absurd to oppose natural to artificial or technological filiation, which arises on a parallel basis. The question therefore still stands: what does it mean to be father, mother, or child? How is this status to be considered in juridical terms? 3 Cfr. F. RIVERO HERNÁNDEZ, 'La investigación de la mera relación biológica en la filiación derivada de fecundación artificial', in 2nd Basque World Congress, La filiación a finales del siglo XX, Madrid, 1998, pp III. CRITERIA FOR LEGISLATION OR JUDGMENT The experience of comparative Law shows that no uniform criteria exist to address the delicate problems of filiation arising from reproductive technology. As a rule, legislators and judges have resorted to various elements serving to determine filiation and have led them back to traditional assumptions of bloodline filiation or filiation by nature. The possibility of designing a new form of filiation along with both filiation by nature and adoptive filiation has arisen in the literature only. Some time ago, Trabucchi suggested calling it civil filiation. 4 The proposal, however, met with little success, perhaps owing to the difficulty of accurately characterizing such filiation and determining why it is called by such an ambiguous and generic name. We believe that the main criteria that come into play to recompose the filiation link of a child conceived with the aid of technology are basically six: genetic contribution or title to the gametes, affection of the parents who desire the child, prior judgment on the lawfulness or unlawfulness of the technologies, analogy with adoption, the child's higher interest, and the will to procreate or reproduce. Some of the foregoing elements are often preferred over others, and at other times complement one another to arrive at a more or less reasonable solution. A brief description of such elements and their most frequent application will illustrate the complexity of the present picture. 1. The genetic element The genetic contribution, that is, the persons whose stem cells produced the zygote that eventually becomes a born child, is the traditional element determining filiation since the remote 4 A. TRABUCCHI, 'Procreazione artificiale e genetica umana nella prospettiva del giurista' in Procreazione artificiale nella genetica umana, Padova, 1987, pp past. As it was not possible to know such origin for certain, it was deemed proved by the fact of parturition, for the wife, and generally by the presumptive paternity of the husband. In other cases, proof of intercourse with the mother could show such biological contribution. Today, polymorphonuclear DNA tests allow biological paternity or maternity to be shown with considerably more precision. Filiation based on genetic contribution cannot be put aside lightly in the case of children brought into the world by means of reproductive technologies. Indeed, when artificial insemination or in vitro fertilization is performed with the gametes of the couple who desire to procreate, paternity and maternity will be determined in accordance with this traditional criterion. Moreover, even with technologies assisted by third parties, genetic contribution also plays a major role. This was the case in judgments of U.S. courts in surrogate maternity cases, where paternity was ascribed to the male whose sperm fertilized the egg of the woman carrying the child, and maternity to the same woman, not only because of her gestation but also for having contributed her own genetic material to the new child 5. A difficult problem arises when a choice must be made between genetic contribution (title to the egg) and contribution to embryo nourishment and care (title to gestation). It does not appear to be a simple matter, then, to judge which of the two contributions -both equally biological- is to be preferred. 2. The element of affection It has been very often argued that where assisted reproductive technologies are involved, filiation should be based on the warmth of affection rather than on cold biology. Here the determining criterion to identify the parents is neither the origin of the gametes nor the biological contribution of gestation but the affection with which the recipient couple accept the child. Affection 5 In this sense, the famous Baby M case (Stern v. Whitehead, New Jersey Super, A.2d 52, 1988). determines fatherhood and motherhood. Although upheld by some literature, 6 the element of affection seems too subjective and uncertain to provide effective help in cases of dispute. If it is a question of affection, why should the power to contest paternity be denied to the husband who, though unable to refuse consent for his wife to be inseminated with another man's semen, now rejects absolutely the child that he feels is alien and for whom he has no fatherly love? Accordingly, this criterion appears rather weak. 3. Prior lawfulness or unlawfulness of the technologies The value that the legal system may attach to the legitimacy of such procedures would appear to have no bearing on the regulation of the filiation links of the resulting child. Clearly, even though so-called 'donation' of gametes or 'hiring' wombs were forbidden by law, if such procedures are performed against such prohibition and as a result a child is born, the existence of the child cannot be ignored or treated as a contractual effect that annulment of a forbidden contract should cause to disappear. It appears from this reasoning that two spheres should remain separate: that of the legitimacy of a singular mode of assisted reproduction technology from that of determination of the parental ties of the child born as a result thereof. I disagree with this position, however. Indeed, it would be effective only if we assume a priori that all technologies are legitimate and that no one of them could be declared illegal by legislation or judgment. The fact remains that a technology may not be legally discouraged if its filiation-related effects are regulated as though it were legitimate and irreproachable. Hence determining which technologies are to be considered legal, which are morally reprehensible though legally tolerated, and which are to be forbidden outright, is a previous judgment required to formulate a consistent and systemic regulation of filiation effects. One proof that such an attitude is not entirely absent, as current literature might lead us to think, is the position adopted in Europe in regard to surrogate motherhood. There is no doubt 6 Cfr. G. FIGUEROA, Persona, pareja y familia, Edit. Jurídica de Chile, Santiago, 1995, pp that the European rule providing that if -breaching legal prohibition- a child is born for the account of another woman, the child's mother is she who delivered it, is a powerful deterrent against such practice Analogy with adoption A criterion that often emerges when resolving disputes among genetic donors, gestational contributors, and recipient couples, is that of applying by analogy certain rules provided under positive law for cases of adoption. This is what happens when the case is a question of cryopreserved embryos offered to a couple other than the progenitor couple. Adoption is also invoked to give the man or woman who desires the child preference over the donor of the sperm or egg that gave the child life. It is said that, in essence, the child is being preadopted, even before it was conceived 8. In my view, however, the analogy has limitations and cannot play a determining role, because adoptive filiation is intended for protecting and sheltering a child who unfortunately has no proper home in which to live. The main thrust of adoption is the orphaned or abandoned child. The interest of the adopting parents in obtaining offspring is only a secondary consideration. Although in technologies involving contribution of gametes there is no doubt that the focus of interest moves from the child to the adults who desire a child. Whereas in adoption parents are sought for the benefit of a child who has none, in heterologous technology a child is created who is born an orphan to satisfy the desires of parents who wish to accept it. 5. The best interest of the child The standard of the 'best interest of the child' (article 3, Convention on the Rights of the Child) is sometimes taken into account, though often only nominally and to support decisions justified by other criteria. In U.S. trials this element is sometimes invoked to decide on the issue of 7
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