Pravni značaj biomedicinske usluge čuvanja reproduktivnih ćelija maloletnog lica

Abstract

Serbian Law on Medically Assisted Reproduction has widened the number of persons who enjoy the right to preserve their reproductive material for postponed reproduction due to threatened infertility. In this context, that right now belongs also to underage person if her/his parents gave the explicit and written consent to harvesting, freezing and banking of their child's reproductive cells. These are the cases when the underage person currently has reproductive capability, but she/ he is threatened by loss of reproductive function in the near future due to developing illness or forthcoming medical treatment. Understandably, the child has no right to postponed usage of residual reproductive cells beyond the cases of threatened infertility, since the underage person does not meet the legal requirements concerning personal and family status necessary for enjoying services of medically assisted reproduction. Frozen reproductive cells of underage persons will be stored without time limits, but the underage person cannot use them for conception before acquisition of legal conditions to enjoy the services of medically assisted reproduction (majority and full legal capacity, conclusion of marriage or establishing cohabitation). Such approach intends to make balance between the interests of an underage person whose gametes are stored and the „the best interets of the prospective child“ who should be conceived and born. Frozen reproductive cells of an underage person cannot be used in any other purpose except postponed homologous reproduction. Although it is not directly mentioned in Law on Medically Assisted Reproduction, reproductive cells may be harvested from an underage persons if she/he does not object to it. Such rule derives from the analogous application to the rule of Law on Human Cells and Tissues that human cell cannot be harvested from a person who has not attained majority if such person objects to it. Parents of the child decide on giving consent to harvesting, freezing and banking of their child's reproductive cells by their mutual agreement, which has the legal significance of the issue that greatly affects the child's life. The absence of consent of one or both parents cannot be replaced by state authority decision. Furthermore, the parents are not allowed to revoke their consent to their child's gamete banking.