ECLJ comments on the Romanian Draft Law on Medically Assisted Reproduction by Third Donor, no. 63/2012.

On the 29th of September 2011, Romanian Government proposed a Draft Law on Medically Assisted Reproduction by Third Donor (MARTD hereafter) - Draft Law no. 63/2012- aiming to tackle demographic decline in the last 20 years in Romania, infertility of some couples and lack of specific legislation in this field. The declared purpose of this legislation is also to implement the provisions of the Romanian New Civil Code which will enter into force in October 2012 and will introduce a new chapter on “Medically Assisted Reproduction by Third Donor” (articles 441 to 447), providing that “the parents can only be a man and a woman or a single mother” (article 441 § 3) and that the legal framework of the MARTD will be further established by a lex specialis (article 447).
As currently this Draft law is on debate in the Committees of the Chamber of Deputies of the Romanian Parliament, ECLJ prepared a Memorandum which aims to be a useful instrument of information, reflection and proposal on this issue for the members of the Romanian Parliament and other interested parties (ECLJ Memorandum - Privind Proiectul De Lege Referitor La Reprodurecea Umana Asistata Cu Tert Donator In Romania). The document presents firstly, the various procedures used in medically assisted procreation, secondly, the risks and consequences of those techniques, thirdly, the principles and rights provided by the European and international treaties to which Romania is part and which can be violated by the practice of those techniques, successful alternatives to MARTD, and finally, a set of 10 guiding principles for the Draft law that will ensure its conformity to the European and international norms.

As to the Government’s Draft law, it is to be noted that its 12 articles are very broad and vague (see the comparative table in annex), as was also remarked on the 3rd of October 2011 by the Legislative Council, approving it, nevertheless drawing the attention on certain issues, such as: the insufficiency of the solutions proposed, the vagueness of the norms which allow various interpretations, the exclusion of the female donor while the New civil Code does not forbids it, the lack of provisions regarding the legal mechanism of the MARTD (rights and obligations of the parties, contractual relations between the parties, funding, donors’ register, sanctions, confidentiality of information and their transmission, etc). Inspiring itself from the French Public Health Code, the Legislative Council mentioned the omission of certain essential elements of the Draft law: object of the donation (sperm or ova), procreation capacity of the donor, consent of the partner of the donor, revocation of consent, interdiction to use fresh sperm and to mix the sperm of different donors, the maximum number of children of the same donor, condition regarding the parents, the legal framework of ovarian hyper stimulation and of embryo transfer, lack of definition of sterility and infertility, how will be established the disease of certain severity of the child.

On the 5th of October 2011, the Government summits the Draft law to the Senate for adoption, the latest sending it for report to the Public Health and Human Rights, Cults and Minorities Committees. On the 5th of March 2012, the Public Health and Human Rights Committees of the Senate adopted a common report approving the Draft law with amendments and summited it to the plenary of the Senate for debate. The Committees considered that the Draft law should establish norms for the entire field of medically assisted reproduction, which includes the reproduction by third donor and surrogate motherhood. The draft amendments took into consideration the proposals of the following NGOs and institutions: “SOS Infertility”, “National Agency for Transplant”, “Romanian Society for Reproductive Medicine”, “Euro regional Center for Public Initiatives” (see the comparative table in annex). On 2nd of April 2012, the Senate adopted tacitly the initial version of the Draft law, as the amended version was not introduced for the voting within the legal delay.

On the 10th of April 2012, the Senate sent the Draft law to the Chamber of Deputies for debate and adoption. The latest sent it for report to the Health and Family and to Legal Matters, Discipline and Immunities Committees and for approval to the Human Rights, Cults and National Minorities Issues and to the Equal Opportunities of Women and Men Committees. On the 24th of April 2012, after examination and debate, the Human Rights, Cults and National Minorities Issues Committee rejected the Draft law, but the Committee on Equal Opportunities of Women and Men approved it. The report of the two other Committees is waited. Debate in the plenary of the Chamber of Deputies will follow after the submission on the report.