Published:
The highest instance ordered the Government and Congress to prepare a bill to regulate assisted human reproduction.
The historic ruling in Colombia in favor of a woman who was denied the implantation of an embryo after separating from the donor
A Colombian fertility clinic has five days to implant a pre-embryo into a woman, who filed a tutela action against that health center and her ex-partner, because they denied her the implantation of an egg.
The woman filed the appeal after her ex-partner refused to allow her to continue the previously agreed-upon egg implantation treatment after breaking up the relationship. The clinic, for its part, did not allow him to continue with the process if there was no agreement with the sperm donor.
The Constitutional Court determined that, with this, he violated the right to sexual and reproductive self-determination of the plaintiff.
Why was this ruling reached?
The judicial entity explained that those involved resorted to in vitro fertilization and that both contributed their gametes. “The pre-embryo that emerged from said procedure was subject to cryopreservation,” says the Court.
#LaCorteInforma | The Court urges the national government and the Congress of the Republic to regulate everything related to the subject of Assisted Human Reproduction Techniques. MP José Fernando Reyes Cuartas. https://t.co/S6CfEIuBUg
— Constitutional Court (@CConstitucional) October 10, 2022
Given that the clinic refused to continue with the procedure due to lack of agreement with the sperm donor, the plaintiff filed an action because she considered that her rights were violated and requested that an order be ordered the implantation of the embryo.
In the contract that had been established with the donor and the fertility center it was stated that, if changes in the relationship, such as a separation or divorce, “that give rise to a disagreement, the destination of the embryos will be defined by the mother
“.
The grounds for the decision
The Eighth Chamber of Review, with a presentation by Judge José Fernando Reyes Cuartas, “concluded that the right to sexual self-determination was violated reproductive health of the citizen”.
Among the judge’s arguments, it is detailed that the agreements reached in infertility processes vitro and embryo cryopreservation are compatible with the Constitution and binding. Its validity extends even beyond the duration of an affective relationship.
“The right of the ex-partner to decide not to be a father lacks sufficient weight to oppose her claim ” because “he had previously expressed his consent for the development of TRHA”.
The highest instance determined that the citizen will be able to decide whether or not to assume the “parental bond”, if implantation, gestation and birth occur.
The clinic and the doctor can determine that the man becomes an anonymous donor, if you do not express your desire to have a filial relationship with “the person who may eventually be born”.
What is the scope of this decision?
This ruling resulted in the Constitutional Court asking the Government and Congress to prepare a project that “comprehensively regulates everything related to Assisted Human Reproduction Techniques (TRHA)”.
The highest constitutional instance requests that the legislation be made with u n gender approach where the following issues are taken into account:
- Stages of ART.
- The participants, their rights and obligations.
- Nature , scope and effects of the agreements entered into for its development.
- The conditions for giving consent, the possibilities of modifying it and the opportunity to do so.
- The possible destination of the preserved gametes and embryos and the time in which this can occur.
- The responsibility of the clinics and health personnel involved in the process.
- Effects in terms of affiliation.
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