Infertility Treatment Act needs corrections

“The statutory regulation of the IVF procedure must be reviewed by the Constitutional Tribunal, especially in respect of the prohibition of discrimination in access to health care”, the HFHR points out in a letter to the Human Rights Defender.

Under the Infertility Treatment Act, medically assisted fertilization procedures may be used only by women who are either married or living in a permanent relationship with a man. At the end of October, the Human Rights Defender applied to the Constitutional Tribunal for the constitutional review of the Infertility Treatment Act. According to the HRD, the absence of any transitional provisions that would apply to women who have already undergone the IVF procedure violates the principle of citizens’ trust in the state and the laws the state adopts, and also the principle of protection of acquired rights, which are enshrined in the Constitution.

The HFHR has subscribed to the objections raised by the HRD and asked the Ombudsman to expand the scope of his application. The Foundation has objected against the rules governing access to IVF procedures which, as the HFHR argues, violate the constitutional principle of equality in access to health care.

“The Act makes access to medically assisted fertilization procedures contingent upon a status of private life because the same are only available for the persons who are married or live in a permanent relationship”, notes Barbara Grabowska-Moroz, lawyer from the HFHR. “We think that such a differentiation is unjustified in light of its purpose”, Ms Grabowska-Moroz adds.

The draft version of the law assumes that the purpose of this regulation is to ensure that a baby born as a result of a medically assisted fertilization procedure has both parents.

The HFHR also pointed to the need of a constitutional review of the regulation that obliges the authorities to maintain a register of paternity establishment records for children born as a result of medically assisted fertilization procedures. In the HFHR’s assessment, given the highly sensitive character of such data, only the information that is absolutely necessary should be collected. Notwithstanding the above, the Act also provides that the Minister of Health must keep the register of donors of reproductive cells and embryos. Because of that, the statutory regulation seems to exceed the constitutional requirement of necessity.

A purpose of the Infertility Treatment Act, which entered into force on 1 November 2015, is to regulate the means and conditions of the application of infertility treatment methods but also to determine the operational rules of medically assisted fertilization centres and banks of reproductive cells and embryos. So far there were no laws in Poland that would regulate infertility treatment.