For a more comprehensive introduction to the legislation see Derek Morgan and Robert Lee, Blackstone's Guide to the Human Fertilisation & Embryology Act 1990: Abortion and Embryo Research; The New Law (1990).Google Scholar

Montgomery, J., “Rights, Restraints and Pragmatism: The Human Fertilisation & Embryology Act,” 1990 (1991) 54 MLR 524.Google Scholar

Act. No 353 of 3th June 1987: “Danish Act on the Formation of a Council of Ethics and the Control of Certain Biomedical Experiments”. The establishment of an Ethics Council for the health system had been recommended by a committee established in 1984 by the Danish Minister of the Interior. This committee was set up to investigate the ethical problems connected with genetic engineering, in vitro fertilisation, artificial insemination and prenatal diagnosis. The name of the Committee's report was ‘The Price of Progress’.Google Scholar

The Council makes annual reports both in Danish and English. The latest is the Danish Council of Ethics’ 5th Annual Report 1992.Google Scholar

The Council was charged by the 1987 legislation to proceed on the basis that human life begins at the time of conception. The intention of this provision was later interpreted by the Minister of the Interior in responding to a question from the Parliamentary Committee responsible for the Ethics Council as not to give a definition of human life and its inception. The intent with the formulation has been to “establish that the Council of Ethics ought to work from the basis that it is not ethically or legally an argument for unlimited freedom of action toward the human ovum that this is not human life or, expressed the other way round, that from the moment of conception on, a situation exists where it is ethically and legally necessary to consider and perhaps introduce particular limitations in the freedom of action.” The Danish Council of Ethics' Second Annual Report, 1989, p. 50. The “protection” given by the 1987 Act did not prevent maintaining the right to free abortion up to 12 weeks. Neither did the Act prevent later legislation accepting embryo research.Google Scholar

Act No. 326 of the 4th of June 1986. The ban has been included in the Act on Adoption § 33.Google Scholar

In Denmark both transfer of custody and adoption need approval by public authorities.Google Scholar

The Review Committees are already in action, but by the 1992 Act their composition and work was regulated by law.Google Scholar

Act No. 503, June 24, 1992, Chapter 4, § 13.Google Scholar

According to Regulations and General Recommendations of the National Board of Health and Welfare on Insemination (No. 6 of March 27, 1987) the donor must be informed that he may subsequently be required to provide blood specimens or to undergo examinations; and the color of the donor's eyes and hair, and his weight and size, must be entered in the donor's case record.Google Scholar

275 Bundesgesetz, mit dem Regelungen üuber die medizinish unterstüutzte Fortpflanzung getroffen (Fortpflanzungsmedizingestez – FMedG) sowie das allgemeinen büurgerlich Gesetzbuch, das Ehegesetz und die Jurisdiktionsnorm geäander werden), Bundesgesetzblatt füur die Republik ÖOsterreich. The legislation was enacted by the lower house of the federal Parliament (Der Nationalrat) on May 14, 1992.Google Scholar

With the exception of Israel, Austria has more centers offering some form of assisted conception per head of population than any other country. There are 22 IVF (in vitro fertilization) centers, with many more clinics (or “hospitals”) offering various forms of artificial insemination. For an introduction to the various techniques in most widespread use see Derek Morgan and Robert Lee, supra note 1, Chapter 5. The Austrian requirements to satisfy the status of hospital differ from those in, say, England and Wales; to qualify for application to be recognized as a hospital is relatively easy. It would be sufficient for a medical practitioner to have only one ambulance, for example, to seek status as hospital.Google Scholar

Artikel I s. 3(2). Thus, in vitro fertilization with donated semen or eggs is prohibited; gamete intrafallopian transfer (GIFT) with donated gametes is also prohibited. Heterologous embryo transfer where the embryo is not genetically related to the recipient woman is also prohibited, as is the mixture of semen from different donors, Artikel I s. 9(3). Artificial donor insemination is even prohibited where the intending social father is fertile but carries a hereditary disease which is likely to be transmitted to any children.Google Scholar

Where an unmarried couple request treatment services they must first submit to an advisory procedure before a competent court or notary public. A doctor may not perform even medically indicated insemination using the couples' own gametes unless the legal consequences of the procedure have been explained to them by the court or notary; the most important is that the unmarried cohabitant has to acknowledge paternity of the child. The court or notary will issue the couple a special license which they must sign. Section 8 (3) (iv) provides that this license will specify the time within which the medically assisted reproduction may be performed, and that the license may be issued either for one year or for the duration of the treatment until a pregnancy is established. This “reproductive regulation” is supplemented with a “tax on reproduction”; the couple must pay the court or notary charges of approximately 1000 Austrian shillings (app. $100 US). This is one of the provisions of the legislation which may be challenged in the Austrian Constitutional Court.Google Scholar

The ability to cryopreserve gametes and embryos for up to one year is intended to cater only to the limited circumstances in which a woman becomes ill or unable to proceed with assisted conception treatment after fertilization but before the embryo transfer procedure. This is the rather cumbersome way in which the Austrian legislation has sought to provide for and circumvent the legal and ethical difficulties to which the American case of Davis v Davis gave rise. See 15 Family Law Reporter 1551 (1989) on appeal to the Tennessee Court of Appeals West Law 130807 (Tenn App) (1990), discussed in Morgan and Lee, supra note 1, 138; cf UK Act 1990, sch. 3 for the parallel attempt to pre-empt these circumstances.Google Scholar

While they may be stored in accordance with s. 17(1), gametes and embryos may not be returned to their genitors nor to any other person other than for specified treatments. This section, inserted by the judiciary committee which examined the draft legislation, is intended to provide that someone whose semen, eggs or embryos are being cryopreserved may not demand their return. Genitors thus only have the right to retrieve their gametes for the purpose of using them in treatment with their own partners.Google Scholar

The restriction is in terms of the number of relationships in which the semen may be used and not the number of children; sperm from one donor can thus be used several times in up to three relationships. Before the sperm is used, however, s. 12 provides for an examination of the donor and his semen. This must show that the donor is fertile and that the use of his gametes poses no health risks either to any woman undergoing treatment services or to any child which might be conceived as a result.Google Scholar

The Austrian Acton Procreative Medicine, 1992, Section 15.Google Scholar

For a rehearsal of these various arguments see Morgan, Derek and Lee, Robert, supra note 1, 124–30.Google Scholar

Knoppers, Bartha M. and Bris, Sonia Le: “Recent Advances in Medically Assisted Conception: Legal, Ethical and Social Issues”. American Journal of Law & Medicine 17:4, 1991, 329–361.Google Scholar

Cmnd 9314, 1984, para. 2.1.Google Scholar

Such as has recently been addressed by courts in the United Kingdom; see, e.g., Re J – [1991] Sam 33.Google Scholar

The Danish Council of Ethics' Second Annual Report, 1989, p. 95.Google Scholar

Ibid.Google Scholar

The Danish Act on Registered Partnership which is the first of its kind in the world entitles partners of the same sex who register “homosexual marriages” to obtain family rights similar to those of married couples. The background and consequences of the Act are described by Linda Nielsen in International Journal of Law and the Family (4) 1990, p. 297–307: “Registered Partnership in Denmark.” It must be emphasized, however, that this legislation neither entitles the registered partners to obtain joint custody nor to adopt children jointly. They can have children separately, but not together.CrossRefGoogle Scholar

“We have nothing to fear in Death” from On the Nature of the Universe (trans. Latham, R.E. (1951 ed.), extracted in Hanfling, Oswald (ed.), Life and Meaning: A Reader (OUP, 1987), pp. 79–82.Google Scholar

The Danish Council of Ethics; Second Annual Report, 1989, p. 109.Google Scholar

Id. at 110.Google Scholar

Thus, in Norway it is emphasized that the area of assisted reproduction is ethically sensitive and needs to be strictly controlled although the Storting voted in June, 1993 to accept “liberalizing” proposals outlined in a white paper.Google Scholar

See Council Decisions 87/551/EEC, Official Journal No. L334/20 (November 24, 1987) and 1985/195 EEC Official Journal No. L 83/1 (March 1985).Google Scholar

Comm. (89) 532 final.Google Scholar

See his paper “Medically Assisted Procreation and Legal Questions of Parenthood,” prepared for the VIIth World Conference of the International Society of Family Law, Opatija 1991 at p. 19.Google Scholar

After Eser, Albin: “Legal Aspects of Bioethics” in Europe and Bioethics, Proceedings of the First Symposium of the Council of Europe on Bioethics, Strasbourg, 1985, pp. 41–42.Google Scholar

“Rights, Restraints and Pragmatism”: The Human Fertilisation & Embryology Act 1990, (1991) 54 MLR 524’, p526.Google Scholar

See Morgan, and Lee, , supra note 1.Google Scholar

See Nielsen, Linda “The Right to a Child versus the Right of a Child” in Eckelaar, John and Sarcevic, Petar (eds.) Parenthood in a Changing Society (forthcoming).Google Scholar

We know very little about the psychological consequences for the child of being carried and born by a woman who before being pregnant decided to give up the child after birth.Google Scholar

Kirby, Michael, Reform the Law, (1983) Oxford University Press, pp. 238–239.Google ScholarPubMed

“Recent Advances in Medically Assisted Conception: Legal, Ethical and Social Issues” (1991) 17 American Journal of Law & Medicine 329–61 at 332–3.Google Scholar

Id. at 333–334.Google Scholar

Quoted in Gordon Borrie: “Trading Malpractices and Legislative Policy” (1991) LQR 599 at 576.Google Scholar