Chasing the stork –medically assisted reproduction for homosexual couples

Laura Mihailescu – ‘Chasing the stork – medically assisted reproduction for homosexual couples’

Chasing the stork –

medically assisted

reproduction for

homosexual couples

Introduction

One of the greatest medical achievements in the 20th

century was the introduction and development of assisted

reproductive technologies, which culminated in 1978 with

the birth of Louise Brown, the first child born after in

vitro fertilisation treatment. In 2012, the number of

infants born as a result of assisted reproduction

technologies reached 5 million1. Notman observed that with

the gradual employment of these techniques, the general

public attitude has shifted in a positive direction, this

reaction being reflected in the changing of terminology

from ‘artificial insemination’ to ‘assisted reproduction’2.

Naturally, there is a tendency for every mature individual

to wish to reproduce and raise genetically related

1 ESHRE Press Releases, 2012.2 Notman, 2011, p. 380.

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children. In the last century, the notion of family as the

proper environment in which to raise these children has

undergone remarkable transformation, with non-traditional

marital unions such as cohabitation becoming more common

and more accepted throughout the world. However, same-sex

relationships are still seen as controversial topics in

relation to the traditional notion of ‘family’. While

sexual acts between consenting adults of the same sex have

been decriminalised in most countries, and same-sex

marriages have become increasingly tolerated, the formal

recognition of these relationships continues to encounter

hostility and discrimination, particularly when it also

involves a wish for reproduction.

The aim of this essay is to critically discuss the policies

regarding medically assisted reproduction techniques for

homosexual couples within the European Union, providing a

focus on three states, Portugal, Romania, and the United

Kingdom. The introductory part will cover a general

assessment of these techniques and their employment for

homosexual couples, the second part will present the three

case studies, and finally, the proposal for a common

European framework on this issue will need to be analysed.

1. Medically Assisted Reproduction (MAR)

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Medically assisted reproduction is the use of non-coital

technologies to conceive a child and initiate pregnancy.

The most widely used technique is artificial insemination

(AI), but the other technologies relevant for our purposes

are in vitro fertilization (IVF) and surrogacy.

AI is the most popular technique and it involves the

treatment of seminal fluid which is then frozen and

transferred into the uterus of a woman. The second

technique, IVF, is a process during which an ovum is

fecundated in a laboratory, followed by the pre-embryo

transfer into a woman's uterus. Surrogacy, on the other

hand, is by far the most controversial technique. Usually,

it involves the transfer of an embryo created through IVF

into the uterus of a carrier. In the European Union,

altruistic surrogacy, where the carrying mother does not

receive a financial reward for her pregnancy is permitted

in Hungary, the Netherlands and the United Kingdom.

Commercial surrogacy is permitted in which the gestational

carrier is paid to carry a child and it is legal in

Croatia, Cyprus, Denmark and Latvia.

Same-sex families

As the family unit has left its role as an economic

producer for the capitalist system, it has been converted

into ‘a space for well-being and happiness where feelings

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were given priority over obligations’3. This, in turn,

paved the way towards the creation of new family models

which transcend traditional blood ties, such as families

with same-sex parents.

It is widely agreed that one of the greatest challenges in

the life of every and each individual is parenthood, with

the ultimate goal to provide a nurturing, loving and

trusting environment in order for their children could

become confident and secure adults4. However, all

throughout history, societies have rarely been tolerant

towards the individuals who do not conform to its standards

of normality. In particular, homophobia could be seen as

one of the facets of the patriarchal ideology, since

individuals who usually consider themselves equal and fight

for the right to difference constitute a threat to a system

whose construction has been based on dichotomies that also

pertain to gender5. For the countries in the European

Union, Gerhards’s analysis proves that the attitude towards

homosexuality could be explained through a combination of

the modernisation and the cultural theories6. Modernisation

theorists argue that it is economic development that

influences the value orientation of the citizens, while

3 Santos, 2004, p. 162.4 Morgan and Lee, 2003, p. 59.5 N3, p. 164.6 Gerhards, 2010, p. 22.

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cultural theorists claim that values are strongly

influenced by the religious heritage of a country7.

For homosexual couples, assisted reproduction is an

absolute necessity in order to procreate. With the recent

advancements of MAR technologies, it is completely possible

for such couples to raise a genetically-related child

together, the same as with any other family. The growing

trend among homosexual couples wishing to have children has

been labelled by journalists and the media as the ‘gayby

boom’8. However, while this description might imply the

existence of a widespread reproductive campaign, the

provision of MAR is restricted in general by reduced

availability, high costs, and racial barriers. Besides

this, same sex couples also struggle with additional

obstacles, such as discrimination on the basis of their

sexual orientation on the part of the services provider and

legislative limitations against the access to such

technologies by unmarried couples.

Before analysing the provision of services to homosexual

couples, the general arguments against the use of MAR

techniques need to be mentioned. Team presents assisted

reproduction as ‘a field in which commercial interests have

clearly taken precedence over human interests’9, leading to

7 Ibid. 8 Hari, 2009.9 Team, 2009, p. 31.

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the intersection of commerce into what was usually a

private family domain10. It was further observed that,

despite the serious health consequences and their

experimental nature with low success rate, MAR techniques

are advertised as being established and successful, and any

risk presented is minimal11. Worryingly, infants born as a

consequence of MAR treatment are at an increased risk of

birth defects, with at least 30% more when compared to

spontaneously conceived infants12.

Moreover, for many commentators, the most problematic

consequences lie in the ramifications of MAR, which go

beyond the original purpose of enabling human conception by

allowing genetic screening of embryos and extensive

scientific research of embryos13. For example, pre-

implantation genetic diagnosis (PGD) is used to analyse the

occurrence of defects in embryos before implanting them

into the womb. While PGD may detect life-threatening

conditions such as Huntington’s Disease, the application

could be extended in a morally questionable area by

allowing the screening of embryos for non-medical

conditions such as gender, height, intelligence.

10 Levine, 2008, p. 383. 11 N9.12 Hansen et al., 2005, p. 328.13 Cameron, 2005, p. 760.

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However, the benefits of MAR are not negligible. Despite

only having a 23% delivery rate14, it should be kept in

mind that these cases, translated into millions of new-born

babies, would have been inexistent without the help of MAR

techniques. More importantly, for same-sex couples, MAR is

the only solution for them to attain a highly sought

status: becoming a parent. In general, the definition of

‘parent’ would be the person who takes primary

responsibility for a child including the fulfilment of

basic needs, while also being responsible for its personal

development and the instilling of basic morals required in

any society15. This definition does not include any

reference to the sexual orientation of a parent, yet the

idea of a non-heterosexual parent will instil contempt in

the majority of societies.

Article 16 of the United Nations Declaration of Human

Rights states that the right to marry, together with the

right to form a family are fundamental human rights.

Procreation is generally understood as a liberty right due

to the intense need many people feel to procreate and raise

a family, which means that others ought not to interfere in

the attainment of this right16. However, it has been

suggested by different professional bodies and legislation

in the various European countries that MAR techniques 14Ferraretti et al., 2013, p. 2328.15 Reed, 2013, p. 971. 16 Robinson, 1997, p. 220.

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should be strictly restricted to heterosexual couples.

Thus, the constantly changing aspect of society is ignored

by not even taking into account the increasing number of

single women wishing to become mothers, as well as an

increasing divorce rate among heterosexual couples.

Furthermore, in December 2010, United Nations Secretary-

General Ban Ki-Moon called for the abolition of any law

that criminalizes homosexuality or permits discrimination

on the basis of sexual orientation or gender identity17.

The welfare of the children

Before the appearance of assisted reproductive

technologies, one of the main arguments used against same-

sex marriages or legally recognised relationships was the

couple’s inability to procreate. Now, the argument has

shifted towards the welfare of the children raised in such

families.

It should be firstly emphasised that every homosexual

individual has also been raised within a family and a

society that places a great importance on children as proof

of meaning and fulfilment. In other words, they have ‘the

same biologic and associational interests as any other

person’18 and they are generally competent to raise

children according to their own wishes. Like any other

17 United Nations News Centre, 2010.18 Robertson, 2004, p. 330.

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family, the ones created by homosexual couples are also

based on the ‘natural human need for support, companionship

and love, leading to the formation of lifelong bonds

between individuals’19. In addition, by complying with the

standard notion of family, parenting among homosexual

couples would facilitate acceptance and tolerance of LGBT

and would reduce the cases of violence, discrimination, and

exclusion20. This newly-gained ability to have biologically

related children has led to the recognition that these

families do deserve the same societal status and legal

protections as traditional families, and that they can be

harmed by the marginalisation that occurs when they are

denied the right to legally marry or to be legally

recognised as a parent21.

Prejudices such as the fact that children who live in a

homosexual family are more likely to engage in homoerotic

behaviour or that they might even be abused by their gay

fathers have surely not been confirmed22. Borneskog et al.

further observed that there is no scientific evidence that

these children would develop any other behavioural or

developmental disturbances as a result of their parents’

sexual orientation. If anything, children of homosexual

parents are more likely to openly discuss their sexuality

19 Panagiotopoulou, 2013, p. 44.20 Chamie and Mirkin, 2011, p. 540.21 Wilder, 2005, p. 576.22 Borneskog et al, 2012, p. 784.

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with their parents and are more open towards the existence

of homosexual relationships23. The only real concern is

that, due to persisting prejudices, children raised by

same-sex couples may suffer from stigmatization or

discrimination. Hicks further argued that instead of asking

whether gay parenting is bad for kids, the question asked

should be how contemporary discourses of sexuality maintain

the very idea that lesbian and gay families are essentially

deficient24.

Any eligibility criteria that have the consequence of

restricting access to assisted reproductive techniques are

impairing reproductive freedom and restrict the principle

of autonomy as it delimitates one’s ability to decide and

be accountable for its decision25. In the words of

Panagiotopoulou, imposing any restriction on those who

require assistance to reproduce while there are no

restrictions for those who can reproduce without assistance

is unfair and discriminatory26. Additionally, denying same-

sex couples the same benefits, advantages, and rights

provided for heterosexual couples, considering that every

individual is a tax-contributing member of society, renders

the risk that homosexual individuals would be treated as

second-class citizens27.23 N15, p. 981. 24 Hicks, 2005, p. 165.25 N19, p. 45. 26 N19, p.45.27 N20, p. 539.

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Furthermore, some of the countries that have the highest

number of MAR services also have failure rates of marriages

reaching up to 50%, there being no guarantees that

heterosexual couples seeking assisted reproduction will

maintain their committed relationships or marriages during

their offspring’s childhood28. In addition, by not being

offered the opportunity for a legal relationship with both

of his parents, a child could be deeply affected from both

an emotional and a financial point of view29.

The reluctance of some professionals to offer assisted

reproduction technologies could also be related to the fact

that, traditionally, a father is seen as the responsible

authority for imposing limits, while the mother is

responsible for the emotional and affective aspects30. With

homosexual couples, the boundaries between typical

engendered behaviour became blurred. As an additional

example, unlike heterosexual couples which are likely to

assign the majority of household labour to the female

partner, homosexual couples, by not dividing labour as a

function of gender, are more likely to share household

chores evenly31.

On the other hand, an important criticism, also extended to

infertile couples, is that these couples would rather 28 Poots, 2009, p. 26.29 Joslin, 2005, p.684.30 Zachia et al, 2011, p. 8.31 Patterson, 1994, p 63.

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produce a genetically-related baby than to adopt one of the

thousands of disadvantaged or unwanted children. Mason has

also rightly identified some of the issues that appear in

the area of assisted reproduction. These include disputes

over the custody and control of pre-embryos between the

partners, donors that may claim an interest in decisions

about the pregnancy and disputes involving pregnancy,

children and embryos in surrogacy32.

In contrast with the general opinion that the normalisation

of lesbigay sexuality would lead to more children with such

parents, Stacey and Bilbartz believe that there will be a

decline in numbers as homosexual individuals will not feel

pressured to get married and have children with their

opposite-sex partner, a common practice among the

contemporary homosexual couples33. This argument could be

confirmed by the low percentage of same-sex marriages,

reaching only up to 7% of all marriages contracted in a

single year worldwide34.

2. Two mommies, two daddies

Besides being differentiated as a group, lesbian and gay

couples wishing to conceive are also discriminated within

themselves. For example, unlike gay men, lesbians could 32 Mason, 2001, p. 871.33 Stacey and Biblarz, 2001, p. 165. 34 N20, p. 542.

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have access to MAR as single mothers. On the basis of this

type of discrimination, the following sections will present

arguments related specifically to lesbian or gay couples.

Lesbian couples

Regardless of her sexual orientation, it should be

emphasised that every woman experiences monthly cycles in

which the body prepares itself for a potential pregnancy,

with surges in hormones that not only prepare the body

physically, but also affect the mental and emotional state

of the woman35.

Usually, feminist scholars have been critical towards

reproductive technologies, seeing them as intrusive,

experimental, expensive, and they were concerned that women

will be exploited, both financially and emotionally,

through surrogacy arrangements36. At the same time, for

lesbian women, these technologies allows them to become

mothers without the risks attached to unscreened sperm, to

enjoy safe conditions within hospitals and to avoid

unwanted heterosexual intercourse.

Unknown donor sperm, available through hospitals, private

clinics, and doctors is desirable because it allows

autonomous and secure parenting, and also avoids the risk

of transmissible infectious diseases37. However, there are 35 Rank, 2010, p. 144.36 Baker, 2005, p. 524.37 Radbord, 2010, p. 4.

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several forms through which lesbian couples might be

discriminated in their search for pregnancy. First of all,

access to fertility services is expensive, and most

commonly not covered by insurance plans. In addition,

lesbians are not regarded as ‘infertile couples’ for the

purposes of MAR, rendering their desire to reproduce not as

urgent as for infertile heterosexual couples. Moreover,

some fertility clinics, physicians, nurses or other

healthcare providers might refuse to extend their services

towards single women and lesbians or they might create a

hostile environment through their exhibition of personal

opinion.38 Additionally, the costly procedures are

considered less effective than the use of fresh sperm, thus

encouraging women to self-inseminate at home.

Most lesbian couples wishing to become parents together

will designate one mother to conceive and carry the child.

It is also possible to use IVF so that one mother would be

the genetic mother and the other one the birth mother39.

Eggs are harvested from the genetic mother, fertilized

externally, and the resultant embryos implanted in the

birth mother.

The study of Borneskog et al. on 166 lesbian couples

reported an overall increased quality of relationships and

38 Murphy, 2001, p. 105.39 N37, p. 5.

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a higher satisfaction factor among these couples when

compared to heterosexual ones40.

Gay couples

Whilst lesbian couples could be routinely treated in

fertility centres, the same cannot be said for gay couples

who are seeking parenthood through assisted reproduction

using an oocyte donor and a gestational carrier. Before

MAR, gay men who wanted children either did so through

heterosexual relationships, struggled to adopt, or were

occasionally involved in co-parenting situations.

While there are a number of high-profile cases of gay men

engaging in surrogacy arrangements, the cases overall are

still uncommon and limited to the very wealthy. Such an

example is Britain’s most famous gay couple, the first men

who were jointly named on their children’s birth

certificates, the millionaires Tony Barlow and Barrie

Drewitt who now have a total of five children obtained

through surrogates arrangements in the United States41. In

addition, gay individuals wishing to become parents are

seen as a sort of pariah within the mainstream gay society,

as parenting implies a connection to heterosexuality42.

Surrogacy, as stated above, is one of the most

controversial issues in the medical field and even within 40 N22.41 Moorhead, 2010. 42 Brinamen and Mitchell, 2008, p. 523.

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society. According to Schenker, the objections towards

surrogacy include the exploitation of the surrogate woman

who is usually part of a lower socio-economic class from

developing countries for carrying a child for which she

would be paid, thus gaining the nature of a commercial

aspect, that her honour would be impaired and that there

are medical, physical and mental dangers43. Another issue

is its regulation, as it could be regulated under contract

law, employment law, human rights law (prohibition upon

trade in human beings), or through family law as a

particular type of adoption44.

On the other hand, a benefit for the children obtained

through surrogacy agreements is that, as their parents have

had a strong desire to have their own children, they have

the psychological advantage of knowing that their birth was

planned and wanted45.

Men are usually perceived as being incapable of raising

children on their own. However, a 1986 study on 141 single

men revealed that they do not depend on the help of their

mothers, girlfriends or housekeepers to perform the

stereotypically female tasks of cooking or cleaning. Over

80% of the fathers reported that they are personally

responsible for the varied tasks of housekeeping such as

43 Schenker, 1997, p. 180.44 Jackson, 2001, p. 263.45 N44, p. 297.

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grocery shopping, food preparation, house cleaning, and

yard work46.

Typically, misconceptions strictly reserved for men who are

also gay are based on the socially constructed notion of

gender. Thus, they are seen as ‘unacceptable role models

for children based on their stereotypical lack of

definitive traditional masculinity in gender role behaviour

and identity’47. Accordingly, these men are seen as both

psychologically and physically weaker than heterosexual

men. While children having a gay father can certainly

encounter such experiences that confront them with the

effects of bigotry, prejudice, discrimination, and

homophobia, the distinction that gay fathers may offer

their sons is the modelling of androgyny as a gender role

which, in the opinion of Bigner, is ‘an improved model of

masculinity’48.

3. Case studies

There are particular characteristics that each of the three

states chosen as a case study enjoys. For example, while

both Portugal and Romania claim to be secular states, the

public opinion and thus, their political leaders, are still

very much influenced by religious traditions. Unlike 46 Risman, 1986, p. 98. 47 Bigner, 2000, p. 68.48 N47, p. 70-73.

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Portugal, Romania is much more restrictive towards the

issue of sexual orientation, but more permissive in the

enjoyment of MAR techniques. In contrast with both, the

United Kingdom provides one of the best legislative and

societal models for both access to MAR and acceptance of

LGBTI groups.

Portugal

During a period of dictatorship of nearly 50 years suffered

by Portugal, the Penal Code criminalised sexuality, a

status that ended only in 1982. The Constitution was also

changed by rewriting a non-discrimination clause including

sexual orientation. It can be firmly stated that LGBT

rights in Portugal have developed immensely over the last

decade, with same-sex marriage becoming legally recognised

in 2010. While this may seem as reinforcing the equality

principle, Brandao and Machado believe that ‘it emerges, at

best, as formal equality’49, as heterosexuality is the

normal and desirable model of conduct within the social

sphere and validated by legal and institutional mechanisms.

For example, homosexual couples cannot enjoy any parenting

rights whatsoever. The study conducted by Butler among

same-sex couples in Portugal reveals that the interviewees

were not comfortable when publicly demonstrating affection

towards a partner, contrasting their experiences with the

49 Brandao and Machado, 2012, p. 672.

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heterosexual couples50. In contrast with its neighbour,

Spain proved to be more tolerant towards homosexual

couples, with a poll in 2003 showing that the Spanish

public opinion was one of the most sympathetic with same-

sex marriage (68 per cent) and same-sex joint adoption (57

per cent) in comparison to other European countries51.

Unlike many of the Western countries, Santos observed that

Portugal has not had any strong social movements52. While

the LGBT movement began as a minority struggle, it has

managed to ‘transform into a large-scale expression of the

claim to the right to the body and to sexual self-

determination’53. Consequently, the movement was an

important ally for campaigns for the liberalization of

abortion, for equality of gender, and for the introduction

of sexual education in schools.

In Portugal, Medically Assisted Reproduction is regulated

under law n.º 32/2006 of July 26. However, unlike the UK,

the law specifically requires that the beneficiaries of MAR

are members of heterosexual couples. Thus, the current law

for assisted reproduction in Portugal reinforces the notion

of gender and is rested on a representation of femininity

closely linked to motherhood, stable conjugality and

50 Butler, 2004, p. 1482.51 EOS Gallup Europe, 2003.52 N3, p. 167.53 N3, p. 182.

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heterosexuality54. Since sex difference, stable conjugality

and infertility diagnosis are all required in order to

access MAR techniques, this ensures that people who do not

fit the model are prevented from enjoying the same rights.

However, the interviews held by Machado and Brandao with

judges working in Family and Juvenile Courts of Law prove

that their own opinions and representations of motherhood

are indeed broad enough to include lesbian motherhood, with

most of them admitting that lesbian motherhood should be

accomplished through MAR55.

The undeniable influence of Catholicism in the values and

representations of the Portuguese is seen as one of the

main reasons for their antagonism to homo-eroticism56. The

response of the Catholic tradition to IVF and other

reproductive technologies is clearly set out in Donum Vitae

published in 1987. A central argument of this document is:

'what is technically possible is not for that very reason

morally admissible'57.

Considering that about 89 per cent of Portuguese consider

themselves to be religious and 97 per cent of those are

Catholic58, then it is clear that the Catholic Church

influences morality and political decisions directly

54 Machado and Brandao, 2013, p. 479.55 N54, p. 475.56 N49, p. 672.57 Donum Vitae, 1987, Section 4. 58 N3, p. 171.

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affecting LGBT citizens. In Catholicism, Greenberg and

Bystryn attribute the growing preoccupation with

homosexuality on both church-state conflict and class

conflict59. They argue that the feared consequences of

sacerdotal celibacy led to an irrational hostility towards

homosexuality, but also that, as class divisions became

wider, homosexuality was seen as an element of a luxurious

life-style which was opposed by middle-class morality.

Romania

Quite similar to Portugal, religion has also played an

important role in both the political and social spheres of

the Romanian society. The Orthodox Church, which is the

country’s most important religious denomination has a

considerable impact on local politics.

During the communist era of Romania which ended in 1989,

the authorities increased jail sentences for homosexual

behaviour and imposed an extended pro-natal programme with

the ultimate scope of protecting the country against

population loss. After the fall of the communist regime,

Romania was finally able to apply for membership within the

European structures. However, article 200 of its Criminal

Code which was used for punishing sexual relationship among

same-sex persons. Having a prison term of up to five years,

received a great deal of criticism for not meeting the

59 Greenberg and Bystryn, 1982, p. 534.

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standards of tolerance and non-discrimination60. A new

Penal Code from 1996 amended the article which now holds

that sexual relations between persons of the same sex,

committed in public or producing a public scandal, are

punishable by a prison term between one and 5 years. This

article was repealed in 2000, allowing homosexual

relationships without any criminal consequences.

Additionally, the mentalities of the Romanian people have

not changed significantly, with a poll from 2001 revealing

that 86 per cent of Romanians would not have wanted a

homosexual person as their neighbour61. Despite the pleas

for the recognition of homosexual marriages and the

advancement of a draft bill promulgating the legal

recognition of homosexual marriages, the bill was

ultimately rejected in March 2014.

In Romania, the first in vitro fertilization centre began

to operate in Timisoara in 1995 at the Obstetrics and

Gynecology Clinic of the University under the leadership of

Professor Ioan Munteanu. According to Article 441 of the

Civil Code, access to IVF techniques is allowed for single

women, with no restriction on their sexuality, yet it is

not allowed for homosexual couples. Moreover, there are no

specific laws concerning surrogate mothers. The practice is

extended at a commercial level, but legally, only infertile

60 Turcescu and Stan, 2005, p. 292.61 Ibid.

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women could use this MAR technique. However, the birth

mother will be the legal mother of the child, irrespective

of the purposes of her surrogacy arrangement.

United Kingdom

The UK, through the Human Fertilisation and Embryology Act

1990, adopted in 1991, was the first country in the world

to establish a body, with statutory powers to license and

regulate centres providing assisted conception treatment,

the Human Fertilisation and Embryology Authority (HFEA). As

the Act has proved to be quite robust, it is regarded as

the best available model of legislation, and countries such

as New Zealand have recently enacted legislation which

draws in large part on the UK model62.

Since 1990, many significant technological and societal

changes have occurred, and a review of the 1990 Bill was

announced in 2004, leading up to the 2008 Human

Fertilisation and Embryology Act. In their review of the

old Act, the Government’s intention was to remove ‘the need

for a father’ provision so as to recognise the variety of

family models that currently exist. However, the opposition

encountered during the passage through the House of Lords

resulted in an amendment to include ‘supporting parenting’

as the new necessity. The definition for supportive

62 McLean, 2006, p. 237.

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parenting was proposed by the Ethics & Law Advisory Group

as the following:

‘Supportive parenting may be defined as

a framework of attitudes, knowledge,

behaviours and skills, which impact

positively on the welfare of the child.

It includes a long term commitment

towards the creation of an environment

which promotes and fosters the child’s

health and development’63.

In addition, since 2009 same-sex parents have both of their

names added on the birth certificates of their children.

Nevertheless, Jackson observed that there are two types of

restrictions regarding MAR in the UK. Firstly, the

provisions of the statute are mostly designed to ensure

that any treatment is most readily accessible to

heterosexual couples. Secondly, in many parts of the UK,

the restrictions placed upon the funding for the National

Health System largely confine access to people with

financial resources64. In the UK, the healthcare is to a

large extent offered through a national service funded by

the taxpayers which gives the state a sort of ‘guardianship

role’65 in establishing the regulations of MAR. Yet, the

63 Ethics and Law Advisory Group, 2008, p. 3. 64 N44, p. 19065 N62, p. 235.

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official HFEA Code of Practice recommends that a non-

discriminatory risk assessment of each patient and their

partner should be undertaken prior to the provision of any

treatment in order to establish the risk of harm to the

welfare of the potential child.

While the model does have its advantages, Poots argues that

‘as long as there is policy governing the reproductive

autonomy, there will be potential for conflict and

discrimination’66.

4. A common European policy?

Overall, the European Union’s health policy has been

compared to a ‘patchwork’67, having a ‘fundamental tension

at its core’68. While article 168(7) of the EC Treaty

states explicitly that public health is the responsibility

of the Member States, many aspects of national health care

systems are subject to EU law and policy because health

care involves individuals, goods such as drugs and devices

and services, all of which are subject to the freedom of

movement across borders69.

66 N28, p. 23.67 Van Hoof and Pennings, 2012, p. 193.68 Ibid.69 Ibid.

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Langridge and Blyth have identified three types of

approaches regarding the provision of MAR services70.

Firstly, the most restrictive approach has been described

as the ‘prohibitive approach’, and can be found in

countries such as Germany and Austria. Cameron explains

Germany’s framework as being based on the memories of the

Nazi past which have induced the adoption of a cautious

approach to these issues71. In addition, Italy has adopted

a very restrictive law in 2004 which prohibits the use of

genetic material that does not belong to the couple and

access is restricted only to heterosexual couples.

The second approach, ‘the cautious regulatory approach’ is

represented by Denmark, France, Norway and Sweden. The

third approach, the ‘liberal regulatory approach’ appears

in countries where the legislation on assisted conception

is very liberal, providing a wide range of services and it

is represented by the Netherlands, Spain and the UK.

The different approaches within the European Union lead to

the proliferation of reproductive tourism. Reproductive

tourism refers to the movement of individuals from one

state to another for the purpose of obtaining specific

types of medically assisted reproductive services that they

cannot obtain in their own country. For example, Diana

Blood, a UK citizen who transferred the sperm of her

70 Darren Langdridge a & Eric Blyth, 2001, 5271 N13, p. 750.

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deceased husband from to Belgium in order to be

inseminated, is a very well-known case of medical

tourism72.

The most well-known argument against reproductive tourism

is inequality of access, from a financial point of view.

Payne further observed that cross-border reproductive care

within Europe could also serve to reproduce national and

ethnic stereotypes73. Thus, as a very simple example, a

person with Nordic features living in Romania would rather

go the Scandinavian countries in order to medically

conceive a baby, as he/she would prefer the baby to enjoy

the same physical traits as its parent.

Furthermore, Storrow observed that the availability of

cross-border reproductive travel has the undesired

consequence of making legislatures wishing to enact

stricter and more symbolic prohibitions instead of

promoting and sustaining moral pluralism74.

As a consequence of the issues presented above, many

commentators support the notion of a common European legal

framework for MAR techniques.

However, while harmonisation should indeed be considered, a

major problem is that people do not identify with Europe75,

72 Pennings, 2005, p. 122.73 Payne, 2013, 23974 Storrow, p. 2942.75 N72, p. 124.

27


an argument represented by the low voter turnout for the EU

elections. It is feared that by taking these ethical issues

to the European level, the citizens will feel that their

right to decide about such moral issues will be overlooked.

Pennings rather argues that reproductive tourism in its

current state should be seen as a ‘safety valve’76that has

the consequences of avoiding moral conflict and

contributing to a peaceful coexistence of the different

ethical and religious views in Europe.

Another issue with legal harmonisation is the choice of

inclination towards a more restrictive approach or towards

a rather libertarian approach. Pennings observed that if

the European Convention on Human Rights and Biomedicine

which entered into force in 1999 is an indication of the

future evolution of such law, then it is towards the

restrictive side77. On the other hand, from a libertarian

perspective, reproductive care could fall under the

principles underlying international trade agreements and be

subject to the commercialisation of what is traditionally

considered as a private domain78.

A step towards legal harmonisation has been taken with the

implementation of a recent directive, 2011/24/EU on the

application of patients’ rights in cross-border healthcare,

76 N72, p. 127.77 N72, 124.78 Blyth and Farrand, 96, 2005

28


but this cannot mitigate the conflicts between the

different legal regulations of these ethically

controversial treatments.

With specific reference to homosexual individuals, equality

between heterosexual and homosexual individuals was first

introduced with the 1999 Treaty of Amsterdam and is an

essential part of the 2000 Charter of Fundamental Rights of

the European Union. With the non-discrimination directive,

the European Council specified the legal basis for equality

between hetero- and homosexuals. However, it must be

remembered that the legal right to marry or form civil

union is not recognised in every EU country, with only ten

EU countries legally recognising same-sex marriages. In

addition, same-sex couples can legally adopt in ten

countries and other three countries permit step-child

adoption. Evidently, uniform guidelines regarding parental

rights and obligations for lesbian and gay parents would be

needed to ensure consistency and equity in decision making,

whilst protecting the interests of children and parents79.

Conclusion

79 Hare and Skinner, 2008, p. 372.

29


It can be affirmed that while in some countries homosexual

couples are still fighting for their most basic rights, in

others they have the possibility of enjoying couple life to

its fullest, by getting married and having children. Same-

sex families should be promoted, as they are ‘on the

cutting edge of constructing a new hybrid bio-social

family’80, one that belongs in a postmodern twenty-first-

century.

In conclusion, this essay critically analysed the different

legislative and non-legislative issues that deter

homosexual couples from attaining parenthood through

medically assisted reproduction techniques. It should be

reiterated that, in order for these individuals to feel

that they could be successfully included in their own

societies, the barriers impeding access to the perks that

heterosexual couples enjoy should be lifted. It is,

however, difficult to support the implementation of a

common comprehensive European framework for MAR

technologies, especially one including homosexual couples,

given the current legal circumstances in the different

European States. The best solution is presented by Rank

which claimed that reproductive equality could be secured

only by redefining infertility to include social or

relational infertility, and by removing the barriers to MAR

80 Ehrensaft, 2008, p. 177.

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technologies81. In this way, a firm confirmation that that

children are being conceived within the boundaries of

committed relationships will also be obtained.

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Chasing the stork –medically assisted reproduction for homosexual couples

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