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Biolaw and the intimate

Medical Assistance in Reproduction

Despite the birth of the first Portuguese in vitro baby in 1986, Medical Assistance in Reproduction (PMA - Procriação Medicamente Assistida) was only regulated in the country in 2006 by law (...)

Despite the birth of the first Portuguese in vitro baby in 1986, Medical Assistance in Reproduction (PMA - Procriação Medicamente Assistida) was only regulated in the country in 2006 by law 32/2006, which created the National Board of Medically Assisted Reproduction to regulate this activity. The law applies to the following PMA techniques (article 1/1): artificial insemination, in vitro fertilization, intracytoplasmic sperm injection, transfer of embryos, gametes or zygotes, preimplantation genetic diagnosis or other laboratory techniques of gamete or embryo manipulation. But it also applies to circumstances of substitute gestation (article 1/2).

According to article 6, the beneficiaries of PMA are: couples of different sex or couples of women either married or living in similar conditions to their spouses, but also all women (above 18 years old and with no psychic anomalies), regardless of marital status and sexual orientation.

Regarding prohibitions, article 7 determines the proscription of human reproductive cloning or of PMA techniques that improve certain non-medical characteristics of the unborn child, in particular sex selection. Furthermore, article 9 bans the creation of embryos through PMA techniques. However, scientific research on embryos is allowed if it has as goal the prevention, diagnosis or therapy of embryos, the improvement of PMA techniques, the establishment of stem cell banks for transplantation programs or for any other therapeutic purpose.

When other treatments have not been successful, physicians are responsible to propose to the beneficiaries PMA techniques that, scientifically, seem more suitable (article 11/1). Health professionals are not compelled to supervise or assist in the performance of any PMA technique if, for medical or ethical reasons, they consider them unnecessary (article 11/2). Physicians have the right to conscientious objection (article 11/3).

In June 2016, law 17/2016 extended the scope of the beneficiaries of PMA techniques, guaranteeing its access to all women regardless of the diagnosis of infertility (article 4/3). Another novelty of this law is the further regulation of substitute gestation, establishing the following conditions under which resorting to it is possible: in cases of absence or injury of uterus or in other clinical situations justifying it. Substitute gestation should be of gratuitous nature and should be under a contract of substitute gestation which depends on the authorization of the National Council for PMA.

The most recent legal amendment, determined by law 58/2017 establishes for the first time the fate of spermatozoa, oocytes, testicular tissue and ovarian tissue. According to its article 16-A/1, spermatozoa, oocytes, testicular tissue and ovarian tissue, which have been collected and not used, are cryopreserved for a maximum period of five years, renewable for an equal period under request of the beneficiaries (article 16-A/2). After this time, the genetic material should be destroyed or donated for scientific research.

In the final note of CEP’s - Portuguese Episcopal Conference 184th plenary assembly (2014) the Portuguese Catholic Church declared its “total disagreement” with the legalization of substitution gestation.

D 26 February 2018    AHelena Vilaça AJorge Botelho Moniz

Abortion

The practice of abortion – the voluntary termination of pregnancy – was completely prohibited in Portugal until 1984. It is only with law 6/84 that the “exclusion of the unlawfulness” of abortion (...)

The practice of abortion – the voluntary termination of pregnancy – was completely prohibited in Portugal until 1984. It is only with law 6/84 that the “exclusion of the unlawfulness” of abortion under certain circumstances emerges. According to article 140/1, abortion is allowed under three cumulative conditions: i) if it is done by a physician in an officially recognized health facility and with the consent of the pregnant woman; ii) if it is the only mean of saving a woman’s life or of avoiding her serious and lasting injuries (in the first 12 weeks of pregnancy), in case of “rape” (in the first 12 weeks of pregnancy) or malformation of a fetus (in the first 16 weeks of pregnancy); and iii) these conditions have to be certified in a medical certificate before the abortion.

After 13 years, law 90/97 would extend the limits on the exclusion of the unlawfulness of abortion: 24 weeks in cases of fetus malformation (article 142/c) and 16 weeks in cases of crimes against women’s sexual freedom and self-determination. This legal framework would subsist until 2007.

In 2007, there was a (second) referendum on abortion where almost 60% of Portuguese voted in favour of abortion (it was preceded by the 1998 referendum where the “no” campaign won). Despite not being binding (as in 1998, less than 50% of the registered voters voted), this positive result regarding abortion led to the publication of law 16/2007. Therefore, abortion is today allowed “when performed, by a woman’s will, in the first 10 weeks of pregnancy” (article 142/e). Women are still forced to fulfil the triple cumulative conditions above mentioned in article 140/1 of law 6/84. Furthermore, law 16/2007 determines a mandatory minimum reflection period of three days for a woman before an abortion (article 142/1/4/a), and the right to psychological support during the reflection period by a social work technician (article 142/2/2/c/d). Physicians have the right to conscientious objection (article 142/6).

In the same year, ordinance 741-A/2007 would regulate abortion’s administrative and technical procedures, namely dispositions on the organization of recognized health facilities and on its access by women, on the opening of a process of abortion, on psychological support or on technical commissions of certification.

In 2015, law 136/2015, on the protection of motherhood and paternity, would change for the first time law 16/2007. This law intends essentially to provide support information (on public social and financial support to motherhood) and to help women to take better informed decisions about their pregnancy.

Law 3/2016 exempts women from the payment of health services charges (taxas moderadoras) in case of abortion.
According to Pordata, the number of abortions in Portugal has been declining gradually since 2011: from 20.480 in 2011 to 16.454 in 2015.

For further information:
MONTEIRO, Rosa, “A descriminalização do aborto em Portugal: Estado, movimentos de mulheres e partidos políticos”, Análise Social, vol. 204, nº 3, 2012: 586-605.

D 26 February 2018    AHelena Vilaça AJorge Botelho Moniz

Euthanasia

In Portugal, active euthanasia is considered a crime, punished by article 133 of the Penal Code.
However, since 2015, Portuguese civil society and political parties have been discussing (...)

In Portugal, active euthanasia is considered a crime, punished by article 133 of the Penal Code.

However, since 2015, Portuguese civil society and political parties have been discussing assertively the issue of euthanasia – medical assistance in dying. In particular, this is due to the inclusion of the topic of euthanasia by PAN – People Animals and Nature (a Portuguese centre-left-wing party) in its electoral platform of 2015, wanting to “open discussion on euthanasia” (it was the only political party doing that expressly). But it is also due to the petition 103/XIII/ 1 of the civic movement “Right to die with dignity”, on the decriminalization of medical assistance in dying, which entered the Portuguese Parliament in April 2016. After that, the debate has entered a phase of broad socio-political and legislative discussion:
Project of law 418/XIII/2ª– “Regulates access to medical assistance in dying” (February 2017). This project of law, presented by PAN, intends to allow medical assistance in dying in cases of incurable disease or injury, which causes intense or persistent physical and psychological suffering, which is not bearable by the patient or in cases of clinical incapacity or absolute or definitive dependency.

Project of law 773/XIII/3.ª – “Defines and regulates the conditions in which the anticipation of death, by decision of the person with final injury or incurable and fatal disease, and which is in during and unbearable suffering, is not punishable”. This project of law, presented by Bloco de Esquerda (a Portuguese left-wing political party), proceeds a draft bill of February 2017, and declares that the request for anticipation of death is the “free, serious and enlightened will of a person with final injury or incurable and fatal disease and in lasting and unbearable suffering”.

D 27 February 2018    AHelena Vilaça AJorge Botelho Moniz

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