Law and practice pertaining to the use of Assisted Reproductive Technology in Europe are analysed in the following documents: “Medically-assisted Procreation and the Protection of Human Embryo Comparative Study on the Situation in 39 States” (Council of Europe, 1998), the replies of the Member States of the Council of Europe to the Committee on Bioethics (Council of Europe, 2005) and a survey carried out in 2007 by International Federation of Fertility Societies.

It would appear from these documents that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.

The studies, in particular, set out the position of domestic law as regards to seven different artificial procreation techniques: artificial insemination within a couple; in vitro fertilisation within a couple, artificial insemination by sperm donor; ova donation; ova and sperm donation; embryo donation and intracytoplasmic sperm injection (ICSI).
A comparison between the Council of Europe study of 1998 and a survey conducted by the International Federation of Fertility Societies of 2007 shows that the events in the field of medically assisted procreation are developing quickly both from a scientific point of view and in the terms of development of a legal framework for its practical application. For example, in Denmark, France and Sweden sperm and egg donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway sperm donation for in vitro fertilisation has been allowed since 2003, but not egg donation. Medically assisted reproduction allowing sperm and egg donation is also regulated by law in Finland since 2007.

However, most countries still have strict rules on the use of ART banning one or another method of fertility treatment. Among the countries which have regulated the issue of artificial insemination both sperm and egg donations are often prohibited. And nearly everywhere in Europe except Ukraine couples are banned from hiring a woman to carry a pregnancy for them. Reasons for these restrictions vary from country to country. Many cite concerns about creating “unnatural” relationships between donors, parents and children. Others are driven by religious and cultural objections.

Experts estimate that thousands of Europeans travel to another country, including Ukraine, each year to use the services of assisted reproduction that they can not obtain in their home country.

European Union principles on the setting of standards of quality and safety for gametal donation, testing, processing, preservation, storage and distribution of human tissues and cells are set in Preamble to the Directive 2004/23/EC of European Parliament and of the Council of Europe dated 31 March 2004 as follows: “This Directive should not interfere with the decisions made by Member States concerning the use of or non-use of any specific type of human cells, including germ cells and embryonic stem cells. If, however, any particular use of such cells is authorised in a Member State, this Directive will require the application of all provisions necessary to protect public health, given the specific risk of these cells based on the scientific knowledge and their particular nature and guarantee respect for fundamental rights. Moreover, this Directive should not interfere with provisions of Member States defining the legal term “person” or “individual”.”

In making the use of this margin of appreciation afforded to them, the States have to decide themselves what balance should be struck between the competing interests in the light of specific social and cultural needs and traditions in their countries.
As for Council of Europe instruments for legal regulation of medically assisted procreation, the Article 14 of Convention on Human Rights and Biomedicine of 1997 stipulates that the use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided. The Additional Protocol to the above Convention, on Transplantation of Organs and Tissues of Human Origin, of 2002, which promotes donation of organs, expressly excludes from its scope reproductive organs and tissues.

1. The Artificial Procreation Act (Fortpflanzungs¬medizingesetz, Federal Law Gazette 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)).
The following overview of the law and practice concerning artificial procreation in Europe is based essentially on the following documents: “Medically-assisted Procreation and the Protection of the Human Embryo Comparative Study on the Situation in 39 States” (Council of Europe, 1998), replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on Access to Medically-assisted Procreation” (Council of Europe, 2005) and a survey carried out in 2007 by IFFS (International Federation of Fertility Societies).

2. From this material it would appear that IVF treatment was (in 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.

3. The study sets out, in particular, the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by sperm donor, ovum donation, ovum and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilisation procedure in which a single sperm is injected directly into an egg).

4. It seems that among the countries which have regulated the issue of artificial procreation sperm donation is currently prohibited in Italy, Lithuania and Turkey. All three countries do not permit heterologous assisted fertilisation. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards ova donation, this is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above.

5. It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (at 2007), the donation of both sperm and ova is used in medical practice.

6. A comparison between the Council of Europe study of 1998 and a survey conducted by the International Federation of Fertility Societies of 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden sperm and ovum donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway sperm donation for in vitro fertilisation has been allowed since 2003, but not ovum donation. Since 2007 medically assisted procreation is also regulated by law in Finland allowing sperm and ova donation.