Polish court gives priority to child’s right to life in dispute over frozen human embryo conceived through IVF

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• The District Court in Radom has allowed the transfer of a child conceived through in vitro fertilisation (IVF) into the mother’s body.

• The case concerns a married couple who, years ago, opted for in vitro fertilisation, which resulted in the birth of one child, while the second embryo so conceived remained frozen.

• The father, after divorcing the mother, did not consent – contrary to previous arrangements – to the transfer of the IVF-conceived child into the mother’s body, stating that he was leaving it to her to choose between disposing of the child or placing it for adoption.

• The child’s mother, refusing to allow the child to remain frozen and seeking to allow the child to develop, turned to the Ordo Iuris Institute for help.

• The Radom District Court has granted the mother’s request for the embryo to be transferred into her body, sharing the view of Ordo Iuris’ lawyers 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 in vitro fertilisation 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”, noted Paweł Szafraniec, Esq. of the Ordo Iuris Process Intervention Centre.

The case concerns a couple who, due to health problems, were unable to have children. Eventually, after exhausting all the available infertility treatment methods, they decided to undergo in vitro fertilisation. This resulted in four embryos. Two were discarded, one was transferred into the mother’s body, and one was frozen. The result of this medically-assisted procreation procedure was the birth of a girl in the very first attempt. The married couple then had a second child, conceived naturally.

However, the couple broke up two and a half years later, eventually ending in divorce. As part of the settlement agreement, which specifically governed the custody of the parties’ children, the husband left his wife the right to decide on the embryo’s fate, with her assuming the obligation to pay for the child’s upkeep, both before and after birth. After the divorce judgment had already been finalised, however, the former spouse refused – contrary to the settlement agreement – to consent to the transfer of the embryo into the mother’s body, declaring that he was leaving her the alternative of either disposing of the conceived child or placing it for adoption. The man argued for the refusal of consent, pointing especially to the breakdown of the parents’ relationship, the impossibility of raising the child in a complete family, the problematic prospect of meeting this child when he would be visiting with their other two children, and the conceived child’s lack of legal subjectivity.

In such circumstances, the mother of the conceived child, who was motivated by her deep affection for the child and wanting to ensure its further development, decided to initiate legal proceedings. To this end, she turned to the Ordo Iuris Institute for help.

Poland’s law and constitution treats frozen human embryos as human beings with rights

The Institute’s lawyers pointed out to the court the position presented in the doctrine that, when the mother of an embryo conceived in vitro applies for its implantation, and where the child’s father does not agree to it, the possibility of such a procedure must be decided by the guardianship court. Also, the Constitutional Court, in its judgment of 18 April 2018, emphasised among other things the embryo’s right to life and the prohibition of an instrumental treatment of any embryo. The Constitutional Court likewise demonstrated that in certain justified cases, the adoption of children conceived in vitro by single persons may be allowed.

The mother’s attorneys further called attention to the view found in the doctrine that a man donating reproductive cells for in vitro fertilisation must be aware that they will be used to conceive a child in order for that child to be born. Representatives of the Institute additionally alluded to the fact that the Convention on the Rights of the Child guarantees the child (as far as possible) the right to know its parents and to remain in their care. It would therefore be preferable to turn an embryo over to its biological mother, even if she were to raise the child alone, rather than potentially giving it to a complete but unrelated family.

No event other than conception can be defined as the beginning of a person’s life

Our lawyers further noted that acts of Polish law, judgments of the Polish courts, and acts of international law which are binding on Poland prescribe special protection for human life, including in the prenatal stage. This is indicated, among other things, by the Constitutional Tribunal’s judgement of 28 May 1997, in which it was stated that “the value of a constitutionally-protected legal good, which is human life, including life developing in the prenatal stage, cannot be subject to differentiation. Indeed, there are no sufficiently precise and justified criteria allowing such differentiation to be made according to the developmental stage of human life. From the moment of its creation, human life thus becomes a constitutionally-protected value. This also applies to the prenatal phase”.

Similarly, in its judgment of 30 September 2008, the Constitutional Court noted: “The Constitutional Court has no doubt that human life is not subject to valuation on the basis of its age, state of health, anticipated duration, or any other criteria”. The need to protect the life of the unborn child is also presupposed by the Declaration of the Rights of the Child, which states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

The moment of conception as the moment when legal subjectivity is acquired by a human being is also indicated in the provisions of various laws which explicitly use the term “child”.  In accordance with Article 2(1) of Poland’s Act on the Ombudsman for Children, the term “child” refers to every human being, from conception to adulthood. In turn, Article 182 of the Family and Guardianship Code stipulates that a guardianship shall be established for a child who has been conceived but is not yet born, if this is necessary to protect the child’s future rights. This guardianship ceases when the child is born. Additionally, according to Article 927 § 2 of the Polish Civil Code, a child who has already been conceived at the time when it is named as the beneficiary of an inheritance may be an heir if born alive. Furthermore, according to Article 157a § 1 of the Penal Code, whoever causes bodily harm to a conceived child or a health disorder endangering its life is subject to a fine, restriction of liberty, or imprisonment for up to two years.

An already existing embryo should not be deprived of its right to life, even if conceived with IVF

The District Court for Warsaw Żoliborz, in issuing the decision in this case, pointed out that “since the legislator treats the embryo as conceived human life, which is subject to special protection and cannot be destroyed, the transfer of the embryo for embryo donation may only be possible after a 20-year storage period, or after the death of both embryo donors, and if in the case in question the embryo has already been created – in the opinion of the Court the participant should bear the consequences of his decisions and try to be the best possible father for the child, and not deprive the already existing embryo of its right to life and the biological mother of the possibility of giving birth to her own child”.

The above-mentioned reasoning presented by the attorneys of the child’s mother was thus shared by the District Court in Radom.