Abstract
The existing Portuguese and Spanish laws on medically assisted reproduction are in general not much different, but this study shows they go completely different ways with respect to medical liability and sanctions for the physicians or medical teams that perform them against these laws in Portugal and Spain. Our study describes both legislative solutions in terms of legal sanctions for medical wrongful actions in this matter. This is a comparative study between the Iberian laws on medically assisted reproduction – Law 14/2006, in Spain, and Law 32/2006, in Portugal – which analyses based on these 2 punitive approaches the solutions for medical liability justice in medically assisted reproduction techniques in the Iberian context.In our study, we show both legal solutions from a critic and constructive point of view, through a comparative analysis of the texts of the laws in question, showing that the Portuguese law on criminal and penal justice concerning wrongful medical conduct is very different from the Spanish administrative system sanctioning wrongful actions as regards medical liability in medically assisted reproduction techniques. We therefore conclude that in order for these systems of reproductive human rights in health to be protected and growth together in the future (as we suggest), the Spanish approach, which is more open and does not apply criminal sanctions to wrongful medical conducts at once, but rather first applies administrative sanctions to medical professionals and hospitals that perform them outside of the law, should indeed, in this field, influence more profoundly the Portuguese system. The latter has a more conservative approach that, in our opinion, should be similar to the Spanish one, because there really is not a scientific reason for handling medical conduct in Portugal and in Spain differently. In the former, the same conduct could easily constitute a criminal offence and imply imprisonment for the Portuguese physician, while in Spain the same conduct is only subject to a fine and administrative legal action. In conclusion, the criminalization of medical liability, in general, and in terms of medically assisted reproduction, in particular, does not help protect human and reproductive rights in health care. Keywords: Medically Assisted Reproduction Techniques Liability, Comparative Iberian Medical Law, Penal Justice, Administrative Justice, Human Rights. DOI: 10.7176/RHSS/11-11-04 Publication date: June 30 th 2021
Highlights
Juan Carlos I of Spain[2] was justified by the need to regulate the new assisted reproduction techniques which, since they came into being in the early 1070s, have opened up new possibilities for solving the problem of human infertility for a vast number of couples affected by this pathology.[3]
Spain was one of the first countries in its cultural and geographical circle to enact a law on this matter: “This need materialised early on with the approval of Law 35/1988 of 22 November on assisted reproduction techniques”[4]
- The Spanish law considers these to be very serious offences: allowing the in vitro development of pre-embryos longer than the limit of 14 days following the fertilisation of the oocyte, carrying out assisted reproduction techniques outside authorised centres, carrying out research with human embryos without complying with the legal limitations, the creation of pre-embryos with material from different individuals to be transferred to the woman recipient, the production of hybrids that use human genetic material, as nuclear transfer techniques for reproductive purposes, and sex selection and other genetic modifications for non-therapeutic or unauthorised therapeutic purposes
Summary
Sanctions (in Spain) are regulated in the new Spanish Law 14/2006 of 26 May on assisted reproduction techniques, in accordance with the provisions of Law 30/1992 of 26 November, of the Legal System applicable to Public Administration and of the Joint Administrative Procedure, and with Law 14/1986 of 25 April, the Spanish General Health Law. Assisted human reproduction offences shall be subject to the corresponding administrative sanctions, without prejudice to the civil and criminal liabilities which may be incurred.
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