GREEK HUMAN FERTILIZATION LEGISLATION
Prof. Dr. Ismene Androulidakis-Dimitriadis
The medically familiar methods of assisted human reproduction have been practiced for many years in Greece. Until 2002 there was no special legislation, neither for the legal effects of those methods, nor for the limits of permitting those medical practices.
The Greek law, which descends from the Byzantine-Roman law, has only known the biological blood relation and the adoption. The increase of the reproduction methods in the Greek law, their spread to countries abroad, the legal regulations which other countries have produced and the persistent occupation of the Greek legal theory, have given to the Greek legislator enough grounds for the legal regulation of the issues, originating by the applications of medically assisted human reproduction.
Greece, following the system of the German law, has a codified Civil Law. The Greek Civil Code (1940), divided in 5 books, regulates at its fourth book the relations created within a family (Family Law) and at the fifth book the succession relations (Succession Law).
The Family Law of the Greek Civil Code was reformed in the year 1983, aiming to assert the principles of the equality of the two sexes, but it did not touch issues of artificial insemination2.
Since then, the implementation of artificial insemination in Greece had multiplied and the problems had become more pressing. In year 2002 the Greek legislator reformed the conditions of family relations3 and incorporated in the family order also the non-biological descent. This step was quite courageous, but at the same time necessary. In the recent year 2005, the law for the framework of applying the medically assisted methods of artificial insemination was issued4, thus completing the legislation of artificial insemination, regarding family, succession, medical and criminal law.
The general critique for that legislation has been positive. But, in specific issues, the steps taken are either rather bold or, on other occasions, the necessary attention has not been given, especially when it comes to existential matters, for example the legal nature of the ovum.
At this point we have to present the basic provisions of the Greek legislation, in order to be able to evaluate it closely.
A. The permitted methods of artificial insemination
Legal requirements for artificial insemination
The Greek law allows assisted human reproduction only in order to come across the inability to bear children the natural way or in order to avoid the transmission of serious congenital illnesses to the child5. This disability can also appear after natural bearing of children. Thus, it does not seem to prohibit people who have already had children, either naturally or through artificial insemination, from acquiring more children by medically helped human reproduction.
The legalized methods
Greek Law allows all the known methods of artificial insemination and the research into human fertilised egg cells, apart from cloning.6 You are even allowed to choose the sex of the child, in order to avoid a serious hereditary illness which is associated with the sex.7
Requirements for the implementation of the artificial insemination methods
All the methods of medically assisted reproduction are practised in specially organized medical Units and Biobanks. The medical units as well as the biobanks can be either private or functioning in public hospitals.8 An independent National Committee for the Medically Abetted Artificial Insemination has been organized by L. 3305/2005 (articles 19-25), which functions as an independent administrative instrument.
B. Issues of Family and Succession Law
If the assisted person is a woman, her medical abetting for artificial insemination is only allowed until the 50th year of age9. For men the medical abetting is allowed until the age of natural ability of reproduction.10
Greek legislation takes as a rule the artificial insemination in a couple, either spouses, or freely living out of wed lock. But, since the living together out of wedlock is not regulated by specific provisions in Greek law, it must be accepted that the medical abetting of artificial reproduction is allowed for every couple.
The medical assistance of artificial reproduction is allowed also to single people. This issue involves either cold-preservation of genetic cells or the pregnancy. The Greek law confines the latter only to women11
The surrogate mother
The Greek law, despite strong arguments by capable part of the Greek theory, has allowed the medical abetting for artificial insemination through a woman who gestates on behalf of another woman and her husband or partner.12 The mother is the woman whose fertilised egg was implanted in the surrogate. This technique is allowed only after Court permission and only if the legal mother and the surrogate mother have their permanent residence in Greece (article 8 L. 3089/2002).
Artificial insemination after the death of the spouse or the partner of the woman is only allowed after Court permission and under the following requirements:
- The husband or permanent partner of the woman had been suffering from an illness associated with possible sterility or there was a danger of death.
- The husband or permanent partner of the woman had consented to the post mortem insemination with a notary document.
- Artificial insemination has to be performed after the lapse of six months and before the completion of two years from the death of the man. 13
It should be noted that the post mortem insemination concerns the use of sperm, as well as the use of an egg which has been fertilised with the sperm of the deceased.
C. The Medical Treatment
Abetting the human reproduction is a medical act. Therefore, the Greek legislation pays special attention to the informing of the abetted people14 The law states specifically that this informing has to be in detail and very clear, regarding the procedure, the alternative solutions, the expected results and the possible dangers form the implementation of those methods. According to the same law, the informing covers also the social, ethical, legal and financial consequences of artificial insemination.
The same law establishes the necessary elements which have to be included in the information forms used at the abetted human reproduction clinics.
Like every medical act, the consent of the abetted persons is necessary and decisive.
The type of consent
Consent must be written for all the occasions of abetted reproduction.15 Especially regarding the gestation by a surrogate mother and the post-mortem insemination, a Court decision is required. Consent is required also for the ending of the genetic material, in case it is not used by its donors. Consent is also required for the disposal of gametes and fertilised eggs to third persons.
According to Laws 3089/2002 and 3305/2005, the donation of genetic material by known donors is not allowed.16 The donors remain strangers when it comes to family relations to the children who will be born by the receivers. The genetic material which has been offered by the donors is at the disposal of the clinics which perform the artificial insemination. This material originates from either the excess material from practices of insemination or by volunteer donors.
The revocation of the consent
Consent to abetted reproduction can be revoked at any time, until the transfer of the gametes or the fertilised eggs to the female body17, even regarding the frozen preserved genetic material.
D. The legal value of the genetic elements
According to Laws 3089/2002 and 3305/2005, the Greek law regards the genetic material as "a distinguished thing" which is at the complete disposal of the people it came from. This view is correct in respect of monomer genetic material that is gametes and eggs. Of course, people are interested in their genetic material and the requirement of written consent for its use, by third persons or for research purposes, is quite understandable18
The same can be said also for the fertilised eggs, as long as there is consent of the couple from whom they originate. But, the Greek legislation, as it is presented in the Laws 3089/2002 and 3305/2005, does not diversify the consequences of revocation of consent as to the way the fertilised eggs are being used. These eggs, according to our opinion, are not a "distinguished thing" which originates by a specific person, but a "biological entity" which has already been separated from the donors and has transformed them ontologically into "sires".19 This means that each one of them separately and in common have a right of "care" to the fertilised egg, even if the Greek civil code does not protect it with the rights of the gestated embryo.20 This position of the Greek legislation appears mainly in article 7 par. 7 of L.3305/2005, where the agreement for the use of the fertilised egg of the woman is ex officio broken if there is a divorce, an annulment of the marriage, a separation, an ending to the free living out of wedlock or the death of the man. This break has caused contestations by many practices, but is not correct ontologically, because the fertilised egg, as a "biological entity" has the right to come into the world, even if only the one of the "sires" wishes it. This kind of a solution clearly creates complicated problems regarding the family relation of the child who has been "rejected" by on of his/her "sires". But in the case of the post-mortem gestation of the fertilised egg, there would not be the need for a court order, and the post-mortem gestation would not be limited only to women. A surrogate mother can be found also for the surviving man who wishes to have a child.
The Greek legislation has elements of completeness regarding the human reproduction, both in regard of family law, as of the confrontation of the medical act of abetting the interested parties. So far it is the newest European law on the subject and one of the legislations which accepts the "surrogate mother". Of course it will contribute to the problem of low birth rate which exists in Greece, but also to the reformation of the Greek family model.
Law and Medicine: a Dangerous Liaison
But, the subject of the conference is: Law and Medicine: a Dangerous Liaison.
Law and Medicine are in a logical conjugation. Modern medicine functions within the framework of the lawful world. Due to the fact that it touches the physical and psychological commodities of a person, his consent is necessary for the practice of every medical act, after a detailed and complete informing has been given.
The informing is a medical act; the consent is a legal concept. Thus, law is connected indissolubly to the medical science and this creates rights and duties between the doctor and the patient. So, even criminal law interferes, when an illegal and punishable act injures the legal status and the integrity of the patient.
The connection between law and medicine is especially intense in the field of medical abetting the human reproduction. In this area, medicine has consequences not only on the patient, but it also influences the family relations. It interferes with the creation of a new life, where nature on its own fails to create it. So, the medical science interferes with the legal order, thus forcing the legislator to regulate with provisions of basic law, what medicine is allowed to practice and what not.
Medicine is obliged to follow the status quo in law and to not proceed to medical acts which have consequences unacceptable by a specific legal order.
This is also the reason why some countries permit the surrogate mother, the change of sex etc. and others not. The fact that modern medicine is controlled also by the international legal order is evident by the Oviedo Convention, but also by various national laws and international Treaties, which limit the practices of the medical science within the framework of what is permissible according to the general consideration of the concept of the law.
But, especially regarding the medical abetting in human reproduction, it can be supported without any hesitation that "Law and Medicine coexist in a necessary liaison".
- From the Author's Papers on the subject, in languages other than Greek, see: "The natural Status of Embryo and Fetus in Public and Legal Aspects", in: Council of Europe, Third Symposium of Bioethics, CDBI/SPK 1996; Embryo in Vitro - Rechtsnatur und Status", in: Aufbruch nach Europa, FS 75 Jahre Max Planck Institute für Privatrecht, 2001, pp.797 ff.; Family and Succession Law in Hellas, Ch 4, § 5 p. 91 ff, in International Encyclopedia of Laws, Kluwer Law International, 2003.
- apart from the provision of art. 1471, 2, which secured the recognition of the child who did not biologically belong to the husband.
- with the Law 3089
- (Law 3305)
- Article 1455 grCivCode
- Articles 2, 11 and 12 L. 3305/2005; article 1455 par. 1 s. 2 grCivCode.
- Article 1455 par. 2 CC.
- Articles 16 and 17 l. 3305/2005.
- Article 4 l. 3305/2005
- Article 1455 par. 1 s. 2 CC.
- Arguments from article 1456 par. 1 CC.
- Article 1458 CC.
- Article 1457 CC.
- Article 5 L. 3305/2005.
- Articles 1456, 1457, 1458, and 1459 CC.
- See article 1460 CC.
- Article 1456 par. 2 CC
- Article 8 L305/2005 and article 1459 CC.
- See Androulidakis, in: Aufbruch nach Europa, p. 799 ff.
- Article 36 CC.
Copyright 2005. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at firstname.lastname@example.org