The Third Section of the Provincial Court of Vizcaya This Friday, he refused to grant judicial authorization to use the sperm of a man who died in an accident to inseminate his partner There is no consent from the deceased for its post-mortem use, as reported by the Superior Court of Justice of the Basque Country (YSJPV).
In depth
The Biscayan Court has rejected the appeal filed by the couple and the father of the deceased against the order issued by the Court of First Instance number 11 of Bilbao, which also agreed that there was no need to grant judicial authorization to use the genetic material of the deceased for that purpose.
The court recalls in an order, which is final and against which there is no appeal, that the Spanish legal system allows the post-mortem assisted reproduction subject to two conditions: consent and its use within twelve months.
More details
Regarding consent, he cites article 9 of the Law on Assisted Human Reproduction Techniques (LTRHA) and maintains that it has to be “express and must be provided through the formal channels established by law and be specific for post-mortem insemination“.
According to the Court of Vizcaya, “the consent to proceed to the use of post-mortem assisted reproduction techniques must have been expressly provided by the husband or partner. That is, the deceased must have expressly consented to the posthumous use of his sperm for reproductive purposes, without it being possible to deduce his will implicitly.”
The court recalls that, in this case, it has been proven that the man had a desire to be a father in life because, according to the record, the couple had visited various reproductive health specialists months before he died in an accident. with the goal of planning a pregnancy.
To take into account
However, he states forcefully that “The requirement of proof of whether the deceased consented to the use of his or her genetic material post-mortem is not met.“and maintains that the testimonies of the couple and other relatives about the personal wishes of the deceased”They cannot replace the very personal consent required by the legislator.“.
“Express consent is an essential requirement to verify the will of the deceased, which cannot be replaced by any means because it has a very personal character. For this reason, judicial authorization cannot be admitted through evidence and testimony, since, supplanting the will of the person, it would imply a violation of the person’s capacity for self-determination, which would affect their freedom to reproduce“he says.
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