Family Law

Scarier Than Halloween: Polish Government Legalizes Involuntary 'Donation' Of Embryos

This has created a grim situation for 'non-traditional' families.

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The right to use assisted reproductive technology to conceive a child is severely limited in much of the world, including most of Europe and Asia. But despite the fact that I write about such restrictions on a weekly basis, I was shocked to read Anna Louie Sussman’s recent New Yorker piece. Sussman details just how bad the situation in Poland has become.

Sussman describes the changes in the country relating to in vitro fertilization (IVF) over the last few years, including its complex political and religious underpinnings, and the stories of a number of women negatively impacted by the new laws. Prior to 2015, there were no laws in Poland regulating IVF. As a result, fertility clinics were flourishing. In addition to married couples struggling with infertility, single women were utilizing fertility services, as well as donor sperm, to become parents.

Then, on November 1, 2015, the situation changed drastically. A new law went into effect prohibiting medical professionals from forming embryos with any patient not in a heterosexual married or cohabiting relationship, or from transferring already-formed embryos to a woman without the consent of a man agreeing to assume paternity of any resulting child. Talk about paternalistic control of women! It also left potential single parents out in the cold.

Forced “Donation”

The new law did not stop at requiring consent of a man for a woman to use IVF to conceive. It went further. Existing embryos were prohibited from being destroyed. So single women who had formed embryos before the new law went into place were not permitted to use them for their own hoped-for family. Instead, they were required to donate their embryos to a heterosexual couple for that couple’s family. Any embryo that was not willingly donated to such a qualifying couple, would be force-“donated” (aka transferred to such a couple without consent) 20 years after the law went into effect!

A Grim Situation for “Non-Traditional” Families

I spoke with Warsaw-based Polish attorney Anna Mazurczak. Mazurczak specializes in anti-discrimination law, including the numerous family-building legal issues for hopeful parents. Mazurczak said that the current legal situation not only discriminates against single women, but heavily discriminates against the LGBTQ community. For single men and same-sex male couples, surrogacy is necessary to have a genetically related child. While there are no surrogacy laws on the books in Poland, surrogacy is still strongly disfavored throughout Europe, and Poland is no exception. Most individuals or couples turning to surrogacy must go to neighboring Ukraine, or places like the United States. But even without a legal prohibition, when families return to Poland with their child, the government has resisted recognizing the child’s Polish citizenship if the presenting parents are not a man and a woman together.

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The legal situation for such families has been precarious. Mazurczak described how in two separate cases last year, the Polish Administrative Supreme Court (there are two separate Supreme Courts in Poland) found that it was the right of the child to have Polish citizenship, and required such recognition. Yay! However, despite these positive rulings, the Ministry of Interior has since continued to refuse to confirm citizenship for several children born via surrogacy abroad.

After the 2015 law took effect, the Commissioner for Human Rights Office in Poland (the Ombudsman) brought a case before a Constitutional Tribunal, arguing against that the constitutionally problematic effect of the law on single women — women who had been in progress with their fertility treatment and were now unable to use the embryos created in that process. While the Ombudsman argued that these women had a right to rely on the previous state of the law permitting such action, the Tribunal, in a split decision in 2018, determined to discontinue the hearings, finding that because there was no previous law on the subject, the lack of law could not have been relied on, and such a dispute was outside its role of interpreting existing law. Before discontinuing the hearings, the Tribunal frustratingly opined on the right of a child to have a mother and a father, outweighing a single woman’s right to procreate or have control of her genetically related embryos.

Mazurczak does not see the situation improving any time soon. This past year, there was a proposed law to further restrict IVF to only married couples, not just cohabiting ones. And, of course, in Poland, a married couple must be a married heterosexual couple. The country does not recognize same-sex marriage or even civil unions.

Mazurczak sees the best hope for equality to come through the courts, and hopes that through litigation certain key issues on equality and family building will reach the European Court of Human Rights. Mazurczak also believes that the current situation in Poland is especially ripe for a single woman with embryos to challenge the 2015 law before the European Court of Human Rights.

The situation in Poland reminds those of us in countries like the United States to be thankful for the freedom we enjoy and the recognition that healthy, loving families and parents come in many forms — including single parents and same-sex couples. As for Polish intended parents, at least they can maintain some hope knowing there are attorneys like Mazurczak fighting for their rights.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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