In-vitro and partner consent – is it possible to use an embryo without the husband’s consent?

Introduction 

The decision to undergo an in vitro procedure is never an easy one. For many couples, it is  a path filled with hope for a long-awaited child, but also a time of uncertainty, emotions,  and difficult choices. In practice, this means not only confronting medical challenges, but  also a range of legal decisions concerning consent, responsibility, and sometimes the future  of embryos and the consequences that may arise after the child is born. 

A particularly complex situation arises when a conflict occurs between partners after the  embryo has already been created. What happens when one party wishes to continue the  procedure while the other opposes it? Is it possible to use an embryo without the partner’s  consent, and what legal consequences may this entail? In practice, this is not solely about  the transfer itself, but also about the fact that its consequence may be the establishment of  a parental relationship, including maintenance obligations or the exercise of parental  authority. 

These are no longer purely theoretical questions. A similar issue is currently being addressed  by the Supreme Court, which is examining a case concerning consent to embryo transfer in  a situation of conflict between spouses. 

In vitro in Poland – what does the procedure look like and who can benefit from it? 

The in vitro procedure in Poland is regulated in detail by the Act on Infertility Treatment.  However, not everyone may benefit from it. The Polish legislator has clearly restricted access  to the procedure exclusively to married couples and partners remaining in a common  cohabitation relationship, thereby excluding the possibility of single individuals using in vitro.  This solution is justified by concern for the welfare of the child and the assumption that the  child will be raised in a complete family. 

A key element of the procedure is the consent of both partners expressed in written form.  Patients are thoroughly informed about the course of the procedure, its consequences, and  each subsequent stage for which they must provide informed consent. Consent may be  withdrawn, but only up to a certain point. Until the moment the embryo is created, both the  woman and the man have broad decision-making autonomy and may change their minds. 

The situation becomes more complicated once the embryo already exists. At that point, not  only the rights of the partners come into play, but also the protection of the embryo, the  welfare of the future child, and, in the case of the woman, her bodily integrity.

In vitro and conflict between partners 

As a rule, the transfer of an embryo into the woman’s body requires the consent of both  partners. However, the Act provides for an exception. In the case of an embryo created  within the framework of so-called partner donation, the lack of the man’s consent may be  replaced by authorization granted by a guardianship court. In practice, this means that a  man cannot unilaterally block the procedure if the court determines that the conditions for  transfer are met. 

Importantly, the Act does not provide for an analogous solution with respect to the woman.  Her objection is non-negotiable, as the transfer involves interference with her body and thus  a violation of her bodily integrity. 

In the case brought before the Supreme Court, a woman seeks to proceed with the transfer  of an embryo created through an in vitro procedure, while her husband, from whom she is  in the process of divorcing, strongly opposes this decision. The lower courts granted consent  for the embryo transfer, and now, as a result of the husband’s cassation appeal, the case has  been referred to the Supreme Court. 

The Commissioner for Human Rights emphasized that: 

a) the solution adopted by the legislator, whereby in certain situations the objection of  the man may be overridden, while the objection of the woman remains inviolable  due to the physical nature of the procedure, is permissible 

b) the mere existence of a conflict between partners cannot automatically determine  the impossibility of overriding the man’s objection and performing the embryo  transfer. Such situations are inherent in the nature of cases examined under this  provision; 

c) the court examining the case should also take into account the circumstance that a  non-implanted embryo may be donated to other couples, although this solution  interferes with the reproductive autonomy of the woman expressing the will for its  transfer and, moreover, leads to a situation in which a child that could be born loses  the possibility of being raised by its genetic parents. 

Court authorization for embryo transfer in the absence of partner consent – how are  parental authority and maintenance obligations shaped? 

Obtaining substitute authorization from the Court for the transfer of an embryo created for  the purpose of partner donation does not conclude the matter at the medical stage; on the  contrary, it gives rise to significant legal consequences, primarily in the sphere of family law. In the case of marriage, the situation is relatively clear. If the child is born during the marriage, 

the presumption of paternity of the mother’s husband applies. This means that the husband  of the mother is deemed by law to be the father of the child, regardless of the fact that he  opposed the embryo transfer. Rebutting this presumption is possible only through an action  for denial of paternity, in which it must be demonstrated that the child does not originate  from the husband, which, in the realities of an in vitro procedure within partner donation,  may be limited. 

Consequently, the man acquires parental authority, that is, both the right and the obligation  to participate in raising the child and making decisions regarding its essential matters. A  maintenance obligation also arises, independent of the relationship with the mother and the  prior objection, as well as the right and obligation to maintain contact with the child. 

The situation differs in the case of a couple not remaining in marriage; however, even here,  the man’s objection does not exclude potential legal consequences. If the presumption of  paternity referred to above does not apply, paternity may be established through  acknowledgment or by virtue of a court ruling. 

In the context of the in vitro procedure, a regulation providing for the possibility of  acknowledging paternity even before the embryo transfer is of significance; however, this  provision does not apply to partner donation. 

In summary, a court decision authorizing embryo transfer despite the man’s objection may  lead to the establishment of a full parental relationship, together with all its consequences,  including maintenance obligations and responsibility for raising the child. 

Summary 

From a legal perspective, in vitro is not only a medical procedure but also a decision with  very serious and long-term consequences. As demonstrated by the case currently examined  by the Supreme Court, a conflict between partners regarding the use of an embryo may  evolve into a complex legal dispute in which it is necessary to balance many important  values, and its resolution may lead to the establishment of a full parental relationship, even  despite the man’s objection. 

In practice, this means that the decision to transfer an embryo may result not only in the  birth of a child but also in the creation of legal obligations such as parental authority,  maintenance obligations, or the necessity of maintaining contact with the child. Each such  situation is, however, different and requires an individual assessment in light of the provisions  of the Act on Infertility Treatment and family law. 

If you find yourself in a situation where a dispute arises regarding the use of a created  embryo or you have doubts concerning your rights and obligations, it is advisable to consult a lawyer. Professional support not only allows for a better understanding of your situation  but also helps in choosing a solution that best protects your interests.