Assisted fertilization

A couple, before getting married, decided to undergo an assisted reproduction treatment with their own genetic material. They signed two documents , one for informed consent for the treatment and another for the conservation of the preembryos that were not transferred at that time, in accordance with Law 14/2006. In that second document, they agreed that if within 4 years those preembryos were not transferred to the woman's uterus and they no longer wanted to be responsible, they would be destroyed , with no other use. They also committed to renew the consent each year and to pay the maintenance fees.

After got married and had a first child. Later on, the woman gave birth to two more children in a single delivery. Some time after, the couple got divorced .

The man sued the woman and the doctor in an ordinary trial for breach of contract. His argument was that embryos had been implanted in the uterus of his then wife without his knowledge , which would have caused that twin birth , and he requested compensation for damages.

The court dismissed the lawsuit as it understood that there was consent from the plaintiff for the treatment, both by what was signed and by facts surrounding the case (including that they were still married). The Provincial Court confirmed the dismissal, because a valid and current consent was appreciated, with periodic unrepealed renewals, and also acts that supported that idea, such as the husband accompanying his wife to the clinic for treatment.

The matter reached the Supreme Court, which also rejected the appeal . Although it could be argued from the signed document whether the consent to use "surplus" was still valid, the SC highlights that there was an express consent through conclusive acts, which cannot be treated as mere "implied consent". Even if he stopped renewing what was agreed in writing, those acts implied a modification of consent and make it unnecessary to delve into other debates raised by the plaintiff.

If you need a lawyer to process an issue related to assisted reproduction, our professionals will be able to provide you with adequate advice to obtain the most suitable decision for the interests at stake