Laws regulating MAR issues in Greece

Greece recently completed the legislative regulation of issues regarding the use of methods of medically assisted human reproduction by introducing two particularly avant-garde laws (3089/2002 & Law 3305/2005), which focus on the protection of both the interest of the child to be born and the constitutional right of a person to have children. These laws regulate such cases as the bearing of children by married couples, cohabiting couples and single or unmarried women as well as matters of surrogacy, posthumous artificial insemination, the age limit for women undergoing assisted reproduction procedures, the number of fertilized oocytes allowed to be transferred in the endometrial cavity, the anonymity of donor and receiver in the case of donation of genetic material as well as a large number of other issues which were so far lacking a regulatory framework. In this article, we will analyze in a concise manner the most crucial parts of the abovementioned laws.

Cohabiting couples
Married as well as cohabiting couples can resort to modern methods of artificial insemination (no minimum period of cohabitation is necessary as in other countries) under the condition that these persons shall give their consent in writing before a notary public. This notarial act has the effect of voluntary recognition in order to secure that the child born as a result of artificial insemination shall have both biological and legal parents. In other words, when the child is born, no voluntary or judicial act of recognition shall be necessary since the matter will have already been dealt with by means of the said notarial consent, which is given before the assisted reproduction procedure is carried out.

Surrogacy
Women who wish to have a child through surrogacy shall have to file an application to the court, which shall issue its decision after establishing that the following requirements are met:

The woman filing a claim and wishing to have a child is not physically competent of having one.
The woman offering to be the surrogate mother is healthy and able to carry such a pregnancy and shall undergo a thorough psychological evaluation.
The embryos implanted to the surrogate mother do not belong to her but to a third party – donor or to the woman wishing to have the child. In this way, the legislator wished to rule out the possibility of full surrogacy in motherhood (namely, the possibility of the woman carrying the pregnancy to be the biological – genetic mother of the child as well).
All involved parties (including the spouse of the surrogate mother, if she is married) consent in writing that they wish to undergo the specific procedure, and that there is no financial benefit from it. This consent need not be made before a notary public; it may very well be a private document.
The woman wishing to have a child as well as the person accepting to carry the pregnancy are both permanent residents of Greece. It is noted that their “residence” and not their “nationality” is the criterion laid down by the legislator.

The court’s session takes place in closed doors in order to protect the privacy of the interested parties. If the court finds that all the above mentioned requirements are met, it issues its decision.

Only after the relevant court authorization allowing the implementation of the assisted reproduction technique has been issued, can the doctor proceed with the corresponding medical procedure. The law stipulates that the “mother” of the child born “shall be the woman to whom the necessary court authorization was issued” and not the woman who carried the pregnancy and gave birth to the child. Finally, let it be noted that, based on the said court decision, the Registrar of Births shall register as mother of the child the woman who wished to be medically assisted in reproduction and to whom the said court decision has been issued.

Consequently, this has a wide appeal to Greek society given the fact that it provides all the necessary guarantees required by the persons who resort to this method of assisted reproduction.

Age limit

The ambiguity of the Law 3089/2002 regarding the maximum age limit of women subjected to artificial insemination procedures has been finally dealt with and explicitly regulated by the Law 3305/2005, which stipulates that medical assistance is permissible up to the natural reproductive age of women, namely until the age of fifty.
A novel element of this law is the provision pursuant to which, assisted reproduction procedures can be performed on underage persons by exception and only on grounds of “a serious disease that may entail fertility risks and in order to guarantee the possibility for child bearing”. In this case, both parents must consent to the cryopreservation of the genetic material, even if only one of them is awarded custody of the child; in the case of a minor of fifteen years of age, the minor must also consent to this.

Mandatory medical screening
Pursuant to the law, it is mandatory to undergo medical screening in order to eliminate the possibility of HIV-1 & HIV-2 viruses, hepatitis B & C and syphilis prior to being subjected to an assisted reproduction treatment.

Number of embryos
For the first time in Greece, the law now stipulates explicitly the exact number of fertilized oocytes that may be transferred to the endometrial cavity “up to three fertilized oocytes to women up to forty years old and up to four fertilized oocytes to women over forty years old”. However, the exact number of fertilized oocytes transferred to subsidiary groups of assisted persons may be defined by a decision of the Authority depending on the age and medical status of the assisted persons.

Posthumous artificial insemination
Posthumous artificial insemination is allowed (both to married and cohabiting couples) following a prior court authorization, if both of the following requirements are met:

The spouse or the partner of the woman wishing the child suffered from a disease that either could affect fertility performance or endangered his/her life.
The spouse or the partner had consented via a notary document for posthumous artificial insemination.

The law stipulates explicitly that the said procedure can be carried out six months following the death of the husband or partner and before two years have passed from the death of the spouse or partner. If both of the above requirements are met, it is guaranteed by law that the child born shall have both a biological and a legal father while at the same time the child’s hereditary rights shall not be annulled although the child will have been not only born but also conceived after the death of its father.

By studying the current regulatory framework regarding the modern techniques of medically assisted human reproduction, one shall undoubtedly realize the will of the legislator to assist couples or persons resorting to artificial insemination techniques but at the same time to guarantee the interest of the child that shall be born through the use of such techniques.

Evangelia Sfakianoudi
Attorney at law