"Without Respect to one's Belly: to give birth to and immediately give away a child - is this possible?"
an article by Rosjurconsulting Director General Konstantin Svitnev, legal expert with the European Society for Human Reproduction and Embryology

"ART Regulation in Russia and Elsewhere"
IV International Congress, Current Assisted Reproductive Technologies Issues: Problems and Solutions

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07.12.2018

The health facility paid for a gross error in the paperwork for the IVF program.

Mr. M appealed to the court to protect his consumer rights. The reason for going to court was that the plaintiff learned only after the birth of the child that he was not his biological father. The incident occurred due to the negligence admitted at registration of the patient's informed consent to the IVF program with the use of donor biomaterial.

The essence of the matter is as follows:

Spouses M (husband) and A. (wife), not being able to conceive a child due to infertility, appealed to the FSBI “Scientific Center for Obstetrics, Gynecology and Perinatology named after Academician V.I. Kulakov "for the procedure of in vitro fertilization and artificial insemination (IVF + ICSI). The procedure was successful, and as a result, A. gave birth to a son.

Two years later, the couple divorced, and in the course of the process of collecting alimony under the claim of A. to former spouse, M learned that he is not the biological father of the child.

Within the framework of the proceedings, documents were requested from the medical institution, according to which R., acquaintance of A., who, according to the documents of the clinic, was chosen by the spouses as a sperm donor. In addition, from the documents submitted, it follows that the R.’s biomaterial was prepared in advance for subsequent use, and without donor status. (Later on, R. obtained recognition of his paternity through the court).

M.stated that the respondent did not warn him about the possibility of choosing a donor, and he personally did not sign the couple’s application for IVF + ICSI using donor biomaterial. Given these circumstances, M. filed a lawsuit to protect his consumer rights, since these rights were violated as a result of the unfair service provided to him, namely the birth of a child through IVF + ICSI, for which he and his wife applied to a specialized medical facility. In this regard, M. requested to recover from the medical facility half the cost of services rendered to his spouse under the contract, justifying this by the fact that the services were paid from the joint funds of the spouses, but the plaintiff assumed the obligation to bear the costs associated with the birth of a common child. Since he did not get it, he considered half of these expenses as his loss. In addition, the plaintiff asked to recover the penalty, as well as interest for the use of another's funds in accordance with Art. 395 of the Civil Code.

When deciding, the court indicated that the duty of the respondent to provide information about the service provided was established by Art. 10 of the  Law on Consumer Protection, in connection with which the medical institution was obliged to inform the spouses on the procedure for using assisted reproductive technologies in accordance with clause 3 of Appendix 31 to the Order of the Ministry of Health of the Russian Federation of August 30, 2012 No. 107. The court also referred to clause 3 of Appendix No. 1 to this Order, according to which a man and a woman, both married and unmarried, have the right to use assisted reproductive technologies in the presence of mutual informed voluntary consent to medical intervention. The court also noted that the evidence of the plaintiff’s awareness of the use of donor biomaterial during his wife’s IVF + ICSI procedure in violation of Art. 56 Code of Civil Procedure of the Russian Federation  was not represented. Challenging the claimant’s signature on the relevant statement of the married couple, M. presented the conclusion of the handwriting test, according to which the signature on his behalf was made by another person.

The Judicial Board on Civil Cases of the Moscow City Court upheld the decision of the first instance to recover half of the cost of artificial insemination services from a medical institution, but reduced the amount of compensation for moral harm and fines. As a result, the amount to be recovered from the medical institution amounted to slightly less than 450 thousand rubles.

 

The general director of Rosjurconsulting, an expert in the field of reproductive law Konstantin Svitnev: “The court’s decision is absolutely correct - the clinic made a grave mistake in registering the informed consent of patients to the IVF program using donor biomaterial, for which it was punished. It is strange that she did not immediately admit her guilt and did not settle the patient’s claim in the pretrial order. ” In his opinion, the medical organization is unlikely to deliberately replace the biomaterial, we are talking about elementary negligence. “Patients should sign documents, especially informed consent, at the clinic in the presence of the attending physician, who must personally verify the documents, verify the identity of the patients and verify their signatures. No signature - no ECO ", - stated the expert.

 

Photo: Freepik

Based on "Advokatskaya Gazeta"

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