Woman can use frozen IVF embryo despite ex-husband’s objection, rules Polish court

In what is believed to be the first ruling of its kind in Poland, a court has permitted a woman to proceed with pregnancy using an embryo conceived through in vitro fertilisation (IVF) despite her ex-husband being opposed.

The couple, while still married, had faced fertility problems and turned to IVF in the hope of conceiving a child. As a result, four embryos were created, all of which the couple are both biological parents of.

Two of the embryos were rejected as defective. Of the remaining two, one was transferred into the woman’s body, resulting in pregnancy and the birth of the couple’s daughter, and the other was frozen for possible future use.

Two years later, the couple divorced and, as part of their settlement, the husband left the wife the right to decide on the embryo, provided that she assumed childcare costs before and after birth.

However, after the divorce, the former husband reneged on the agreement and refused to consent to the transfer of the embryo into the mother’s body, declaring that he was leaving her the alternative of disposing of the embryo or placing it for adoption.

The woman decided to take the issue to court, and turned for support to Ordo Iuris, a prominent ultraconservative legal group. Ordo Iuris is normally opposed to IVF, but in this case argued that the already conceived embryo should be protected.

“While there is no doubt that IVF is an unethical method with low effectiveness and dehumanisation of children”, the fertilisation procedure had already taken place and “a child frozen in liquid nitrogen was waiting for the chance to be born”, said Paweł Szafraniec of Ordo Iuris.

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In court, the former husband justified his refusal of consent to the birth of the embryo by pointing to the breakdown of the parents’ relationship, the impossibility of raising the child in a complete family, the problematic prospect of sibling relations, and the embryo’s lack of legal entity.

He testified that he did not want to have another child and also claimed that his ex-wife wanted to bear the remaining embryo not because she wanted to have a bigger family but due to her religious beliefs. He added that the woman’s previous pregnancies had posed a threat to the health of both her and their children.

Ordo Iuris cited Polish laws defining a child as every human being from the moment of conception as well as a 2018 ruling by the constitutional court that confirmed an embryo’s right to life and the prohibition of treating any embryo as an object.

The district court in Radom came down on the mother’s side, noting that “since the embryo has already been created…the law treats the embryo as a conceived human life, which is subject to special protection and cannot be destroyed”, according to court documents.

“The participant [the ex-husband] should bear the consequences of his decisions and try to be the best father to the child, and not deprive the existing embryo of the right to life, and the biological mother of the possibility of giving birth to her own child,” added the court.

The ruling also mentioned the fact that it was the ex-husband who, during the marriage, “suggested undergoing an in vitro fertilisation procedure and urged the applicant [the wife] to do so”.

The court also rejected the man’s claim that the new child should not be brought up in an incomplete family, arguing that “it should be noted that the participant himself, by deciding to leave his family and start a new one, deprived the minors of a full family life”.

The court therefore allowed the woman to use the embryo, recognising “the primacy of the protection of the embryo over the reproductive autonomy of the man”, the court documents explain.

IVF has long been a controversial issue in Poland. State funding for the procedure was ended by the former national-conservative Law and Justice (PiS) government in 2015. However, the more liberal ruling coalition that took power last December immediately restored it.

Agata Pyka

Agata Pyka is an assistant editor at Notes from Poland. She is a journalist and a political communication student at the University of Amsterdam. She specialises in Polish and European politics as well as investigative journalism and has previously written for Euractiv and The European Correspondent.