Ιατρική υποβοήθηση στην ανθρώπινη αναπαραγωγή και δίκαιο της συγγένειας
Γονιμότητα, Ανθρώπινη -- Δίκαιο και νομοθεσία -- Ελλάδα Συγγένεια (Δίκαιο) -- Ελλάδα Fertility, Human -- Law and legislation -- Greece Affinity (Law) -- Greece
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
The rapid development of medically assisted human reproduction methods and their continuously expanding use in our country have raised serious moral, social and legal problems. Both Law 3089/2002 “Medically Assisted Human Reproduction”, as incorporated into the Civil Code, and the more recent Law 3305/2002 “Implementation of Medically Assisted Reproduction Methods” have introduced important innovations into family order and hereditary succession, including, most notably:
a) the inclusion of “social” relationship in the institution of relationship by blood;
b) the automatic voluntary recognition of a child born through assisted reproduction and the exclusion of any challenge thereto (Articles 1475(2) and 1478(2) of the Civil Code);
c) the recognition of surrogate motherhood through “womb lending” (Articles 1458 and 1464 of the Civil Code); an exception to the rule of the provision of Article 1463 of the Civil Code, according to which “The relationship of a person with his/her mother and her relatives is inferred from birth” is introduced by Article 1464 of the Civil Code, according to which “In the event of artificial insemination, if the child has been carried by another woman, subject to the terms of Article 1458 of the Civil Code, the child’s mother shall be presumed to be the commissioning woman authorised to this effect”;
d) the regulation of the consequences of posthumous insemination (Article 1465(2), 1457 and 1458 of the Civil Code); according to Article 1457 of the Civil Code, “Artificial insemination after the decease of the husband or the man with whom a woman lived in non-marital partnership may be authorised by court only if the following conditions are cumulatively met: (a) the husband or permanent partner of the woman suffered from a disease associated with a possible risk of sterility or was under risk of dying; (b) the husband or permanent partner of the woman has consented by a notarial deed to posthumous artificial insemination. Artificial insemination shall be effected not earlier than six months and no more than two years after the man’s decease”; Article 1711(b)
provides that the child born following posthumous artificial insemination may inherit the decedent, and the time of devolution of the estate shall be the date of the decedent’s death;
e) assimilation of the consequences of medically assisted reproduction for spouses with partners living in non-marital partnership (e.g. Article 1457 of the Civil Code); a man’s notarial consent to his partner’s artificial insemination shall be “equivalent to voluntary recognition” ex lege (Article 1475(2)); therefore, relationship with the father is associated not with the fact of non-marital partnership, but with the man’s express consent to medically assisted reproduction, which (consent) brings about the legal consequence of voluntary recognition.
Thus, in addition to legal biological relationship, another form of relationship is now recognised, which is founded on private choices of an emotional nature par excellence. It is the so-called “socio-emotional relationship”, which prevails, to the extent that it is acceptable to society, over biological relationship; in the former, the importance of origin and biological truth fades, while the will of the parties involved becomes an important factor for the establishment of legal relationship.
The principle of “socio-emotional relationship” is expressed in provisions of the Civil Code, including Article 1471(2)(2), according to which the paternity of the husband who consented to the insemination of his wife by another man cannot be challenged by anyone; Article 1478(2), according to which voluntary recognition, with which notarial consent by the permanent partner of the woman is assimilated, cannot be challenged; Article 1460, which expressly provides for the anonymity of third donors of genetic material; and Article 1479(2), according to which a third donor’s paternity of the child cannot be recognised by court, where the presumption of the husband’s paternity does not apply, even if the identity of such third donor is or becomes known.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Ιδιωτικό Δίκαιο, 2006