Assistance médicale en matière de 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 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.