The Regulation of Assisted Reproductive Technologies in Europe

Variation, Convergence and Trends

Erich Griessler, Lenka Slepičková, Heleen Weyers, Florian Winkler, Nicolle Zeegers, Erich Griessler, Lenka Slepičková, Heleen Weyers, Florian Winkler, Nicolle Zeegers

• Verlag: Routledge
• Jahr: 2022
• ISBN:
  9781000583731
• Auflage: 1
• Thema: Social Sciences
• Thema: Global Development Studies

This book explores the social, ethical and legal implications of assisted reproductive technologies (ART). Providing a comparative analysis of several European countries, the authors evaluate the varied approaches to the application of ART throughout Europe.

From a global perspective, countries take very different approaches to the regulation of ART. Countries apply restrictions to the access criteria for these treatments and/or direct restrictions to the practice of the techniques themselves. To understand these varied approaches to ART practice and regulation, it is necessary to understand the societal and political background from which they emerged. This book therefore consists of case studies from eight European countries which provide insights into the status and development of the regulation of ART in the last 40 years. The country cases from all over Europe and the three comparative chapters provide insights into the diversity of current ART regulation across the continent as well as into similarities, differences and trends in this regulatory area.

This book will be of interest to practitioners of ART who are interested in understanding the differences in regulation of ART in Europe, as well as long-term trends in this respect. Given the ethical and legal implications the book explores, it will also be of interest to students or researchers in the fields of social sciences, humanities and law.

1 Introduction¹

Erich Griessler and Lenka Slepičková

DOI: DOI: 10.4324/9781003223726-1

Assisted reproductive technologies: from experiment to normalization, sophistication and broadening the range of recipients

Today infertility is an “ongoing global reproductive health problem” (Inhorn & Patrizio, 2015, p. 411) for millions. In the late 1970s, assisted reproductive technologies (ART), including the most well-known technique, in-vitro fertilization (IVF), began as a set of experimental methods designed to overcome female infertility – tubal factor (Calhaz-Jorge et al., 2020). Using the term “artificial” pointed out that human reproduction was not achieved, as usual, via sexual intercourse but in vitro – in other words “artificially”. This designation, however, also permitted associations with potential monstrosities which ART could give rise to (Herrmann, 2022; Krawczak & Radkowska-Walkowicz, 2022). For example, during parliamentary proceedings in the United Kingdom, the British Human Fertilization and Embryology Act was called the “Frankenstein report” (Fenton, 2006).

Despite such early reservations, ART in recent decades has become part of mainstream reproductive care. Today, ART is an option taken by many people who suffer from infertility for different reasons. These days, ART is presented and perceived as a conventional medical option that supports reproductive processes, as expressed in the name “assisted reproductive technology”, a term which is now generally used.

Thus, ART made its way from an experimental therapeutic procedure to a standard medical intervention in less than 45 years. In 2016, the latest year for which comprehensive numbers are available, 40 countries in Europe reported 918,159 treatment cycles. Over the last few years, the number of cycles performed in many developed countries increased by 5–10% per year (ESHRE, 2020). It is estimated that worldwide, each year, around 2.4 million registered and unregistered ART cycles are performed, with about 500,000 babies born (Gallagher, 2012). In addition to growing numbers of treatments, the range of indications for ART – including male infertility – broadened, and the therapeutic effectiveness of ART increased. Most importantly, ART is no longer only employed for medical reasons in cases of impaired procreation but is also used to help single women and same-sex couples to have children.

The WHO, listing the wide variety of people who may require infertility management and fertility care services, explicitly broadens the group of persons using fertility services to include those whose fertility is not impaired in terms of physical inabilities to conceive but whose “infertility” is related to their sexual orientation, age or partnership status (World Health Organization, 2020). Thus, the definition of infertility moved from strictly medical causes towards a concept of “social infertility”, a term that includes many life circumstances that render people unable to conceive or carry a child without medical intervention.² In other words, the close connection of ART to physical infertility has weakened in recent decades. In addition, because of the rapidly developing technologies of ART, new actors entered the scene of human reproduction, for example, donors of gametes or embryos, surrogate mothers and brokers of fertility services.

The need for (continuous) regulation

As already mentioned, ART has challenged the boundaries of what is perceived as ethical, desirable, moral, natural and normal since its beginning. As such, it clashes with societal contexts in which it is situated in terms of broad social relations, cultural norms and knowledge systems (Webster, 2002). Such conflicts often give rise to calls for legal regulation. Therefore, from the very inception of the field, rules have been debated, set and reformulated all over the globe that should regulate ART. Many times, national and international regulatory bodies faced and are continuing to face calls from different stakeholders to decide what ART procedures should be permitted or prohibited, which patients should be entitled to or excluded from treatment and who should carry the financial costs. These controversies transcend by far simple debates about the permissiveness of a medical intervention and its cost coverage. In many countries, ART was and continues to be a central arena of political battle (Gal & Kligman, 2000) in which actors such as physicians, different groups of patients and their advocates, NGOs, policy makers, jurists, private and public health insurance companies, political advisory bodies and churches struggle over social, legal, ethical and religious norms in human procreation and biomedicine.

Norms that regulate the use of ART operate on different levels. Legislative gatekeeping determines which medical procedures are permissible and for whom. Legal bans prohibit certain medical procedures (e.g., gamete donation) or exclude certain patient groups (e.g., single women, same-sex couples) and thus regulate availability and access. In addition to that, there is economic gatekeeping. ART is an expensive procedure, which – if not covered by public health insurance – only few can afford. Another type of barrier are the formal and informal organizational policies of clinics that provide treatment. Medical facilities have formal access rules, for example, age of patients; partnership; causes of infertility; and physical, mental and even social conditions. But they also have informal rules; health professionals can give or inhibit access, for example, by not starting, choosing to continue or stop treatment and offering or withholding certain procedures or options of treatment. In addition, legal regulation and organizational policies are not necessarily identical. What is legally permitted is not always done in clinical practice, and clinical practice might circumvent legal regulations.

Today, the majority of the 43 countries in Europe that perform ART have legislation in place that governs ART (Calhaz-Jorge et al., 2020)³ and that has been introduced and repeatedly modified in the last four decades (ESHRE, 2017). However, despite several commonalities⁴ and regardless of their geographical or cultural proximity, European countries surprisingly differ from one another in how they regulate access to and practice of ART, such as in terms of eligibility for treatment (age limits, partnership status, sexual orientation), permissibility of embryo selection, egg and/or sperm donation, donor anonymity, surrogacy or reimbursement and waiting time (Calhaz-Jorge et al., 2020). In summary, ART regulation in Europe, the main topic of this book, ranges from permissive to restrictive, with intermediate regulations in between (Busardò et al., 2014; Engeli & Rothmay Allison, 2016; European Society of Human Reproduction and Embryology, 2017).

The regulatory diversity across Europe raises questions such as what types of procedures and regulations exist and how they affect different patient groups.⁵ Comparison shows that discourses on and regulation of ART – a set of medical technologies that are only value free on the surface – are deeply embedded in very specific national, political, social, historical and religious contexts. They exist, develop and change in relation to specific sets of values about, for example, parenthood, family, kinship, sexual orientation, medicine, religion and the availability of human life in principle. Studying these values in their national settings uncovers their diversity and variability but also how they are sustained, rationalized and legitimized.

Country sample composition, guiding questions and methods

This volume assembles case studies from several European countries: Austria, Czech Republic, Denmark, Germany, Italy, Netherlands, Poland and Sweden. Their ART policies range from permissive (Denmark, Netherlands, Sweden) through intermediate (Austria, Czech Republic) to restrictive (Germany, Italy, Poland).⁶ Thus, this volume can provide a comprehensive overview on the variation of ART policies in Europe. Also, these countries have been selected to show the variety of political and cultural traditions in Europe and ART and to include nations that are often omitted from international comparison of ART policies. In terms of size, the country sample covers large, medium, and small states; in terms of geographical distribution, it includes two Nordic, a Western European, two Central European, one Southern European and two Central and Eastern European countries. All of them are Member States of the European Union (EU). However, they entered the EU at different moments in its history and with different political traditions. Germany, Italy, and the Netherlands are founding Members; Denmark, a northern country, joined in 1973, Austria and Sweden, two neutral countries which remained apart from the EU for many years, in 1995; the Czech Republic and Poland, two post-communist countries, became Member States only in 2004.

The country cases follow a common theme by addressing several shared questions: What is the legal regulation of ART within a specific country? How and why did this regulation come about? What is the infrastructure of ART services in a country and how is it used? However, the country cases also differ from one another. They analyze the development of ART regulations from the perspective of different disciplines, including history, law, political science and sociology. They also differ with regard to the explanatory angle the authors take, depending on what they regard from their disciplinary background as most relevant topics and/or moments of national debate to explain ART regulation. Finally, the country cases use different sources such as legal texts, policy documents, records of parliamentary debate, media articles and qualitative and quantitative research on ART.

Individual country cases and comparative chapters

The contributions in this book can be read as individual chapters; however, as a whole, they provide a systematic overview on similarities and differences in the development of ART regulation in eight European countries.

In their chapter “Emerging from Standstill: Austria’s Transition from Restrictive to Intermediate ART Policies”, Erich Griessler and Florian Winkler analyze a radical regulatory change in 2015 which brought a policy shift in Austria from a restrictive towa...

Inhaltsverzeichnis

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of figures
• List of tables
• List of contributors
• 1 Introduction
• 2 Emerging from standstill: Austria’s transition from restrictive to intermediate ART policies
• 3 Assisted reproduction in the Czech Republic
• 4 Taming Technology: assisted Reproduction in Denmark
• 5 A Regulatory Jungle: the Law on Assisted Reproduction in Germany
• 6 Assisted procreation in Italy: a long and winding road
• 7 Avoiding ideological debate: assisted reproduction regulation in the Netherlands
• 8 IVF in Poland: from political debates to biomedical practices
• 9 From safeguarding the best interest of the child to equal treatment: legislating assisted reproductive techniques in Sweden
• 10 Expectations regarding the convergence of domestic laws on ART
• 11 What drives the politicization of ART in Western and Northern European countries?
• 12 Regulating change in human procreation: value changes and imaginaries of assisted reproductive technologies in eight European countries
• Index