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European rights court rules Czech woman can’t use sperm of dead partner

A couple froze the husband’s sperm before he died but the fertility clinic refused to go forward with in vitro fertilization because Czech law requires written consent from both parties.

STRASBOURG, France (CN) — Europe’s top rights court held on Thursday that there is no requirement under the European Convention of Human Rights for countries to allow insemination with a deceased person’s sperm. 

The European Court of Human Rights sided with the Czech Republic, which requires both partners to give written consent for in vitro fertilization. The ruling effectively bars conception with the sperm of someone who has died, after a woman filed a complaint that the regulation violates her right to family life. 

Hana Pejřilová, now 39, and her husband knew they would be unable to conceive a child naturally due to a medical condition, and in 2014 they had his sperm cryopreserved. Before they could begin the in vitro fertilization process, Pejřilová’s husband's health rapidly deteriorated and he died in June 2015. 

Three months later, Pejřilová approached the clinic to begin the IVF process. But the medical facility refused, citing a Czech law that requires written consent from both parties. Pejřilová filed a complaint in a local court, eventually losing the right to use her husband’s sperm before the Czech Constitutional Court in 2018. 

She then filed a complaint with the Strasbourg-based European Court of Human Rights, arguing that her husband had sufficiently consented to the procedure before he died and denying her the chance to have a child violates her human rights. 

Prague argued the written consent requirement protects the autonomy of those involved in the IVF process and the right of the unborn child to know their parents. Pejřilová contended that her husband had consistently expressed his desire to have a child and the regulations did not account for situations such as hers. 

Noting that the issue of IVF was “morally and ethically delicate,” the rights court's Fifth Chamber found that the issues in Pejřilová's case went “beyond individual interests” and the broader public interest should be considered as well. 

The seven-judge panel ultimately ruled the regulations are clear and there is no protection under the convention for a wife to use her deceased husband’s sperm for artificial insemination. Further, the court found that Pejřilová had not started the hormone treatments or had her eggs collected during the year after his sperm was collected but before he died. 

Of the 46 members of the Council of Europe, the body which oversees the court, only seven countries - Belgium, Denmark, Estonia, Italy, the Netherlands, Greece, and the United Kingdom - allow IVF to continue after the death of the partner. Eight others banned the practice outright while others imposed certain restrictions, including limiting the practice to couples. 

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