no. 11-00-632/2023-02 date: 27.12.2023.

“SREBO MEDICAL” HEALTHCARE INSTITUTION

Nebojša Marković, Director

16000 LESKOVAC

Norvežanska 16

Subject: Recommendation of measures for achieving equality and protection against discrimination

Dear Mr. Marković,

The Commissioner for the Protection of Equality was addressed by Tijana Prizrenac Nedeljković regarding the situation in which she found herself after the death of her husband, with whom she was in the process of the IVF procedure in 2019. She states that with her late husband, Marko Nedeljković, she started the process of biomedically assisted insemination at the “Srebo Medical” Health Institution. She explains that in 2016 her deceased husband, wanting to have offspring, and due to impaired health, had his reproductive material frozen. On December 20, 2018, the spouses signed with the clinic Consent for the in vitro fertilization procedure. On January 17, 2019, they paid the price of the service in full, when a follicle puncture was performed, during which 30 eggs were obtained, after which 10 embryos were formed from their reproductive material. On January 20, 2019, the spouses signed an application for the embryo freezing procedure for a period of 5 years, expiring on January 20, 2024. It is further stated that shortly after that, on January 31, 2019, the health condition of the deceased Marko Nedeljković worsened, which is why he was urgently admitted to the VMA, where he died on February 22, 2019. The complainant informed you by mail in March 2019 about the above sequence of events and the intention to finalize the BMAF procedure, when you contacted her verbally and directed her by phone to the Directorate for Biomedicine of the Ministry of Health of the Republic of Serbia. Given that she did not receive any written response from the clinic, the attorneys of the complainant addressed the clinic on this issue, with a request for a finalization of the initiated procedure.

On January 26, 2023, you informed Tijana Prizrenac Nedeljković in writing that according to Article 27 of the Law on Biomedically Assisted Fertilization, the written consent of all persons undergoing BMAF is required to perform the BMAF procedure, before starting the BMAF, and such consent is given separately for each implementation of BMAF. In the aforementioned letter, you referred to Articles 41, 52, paragraph 2, and 65 of the Law on Biomedically Assisted Fertilization.

By analyzing the provisions of the Law on Biomedically Assisted Fertilization, a legal gap is noticeable in relation to the provisions related to the use of reproductive cells and embryos. Namely, apart from Article 52 of the Law prescribing that sperm cells, unfertilized egg cells, zygotes and early embryos cannot be disposed of in a manner that is contrary to the law, there is no provision regulating the way unused reproductive material is handled in case of death. Thus, when it comes to embryos, the Law does not contain an explicit prohibition on posthumous fertilization. Considering the above and bearing in mind the importance of regulating this area in a precise and unambiguous manner, the Commissioner will address the Ministry of Health with an initiative for amendments to this law.

However, regardless of the above, we believe that the specific case of Tijana Prizrenac Nedeljković does not have to wait for the mentioned changes in the Law. Namely, the Law does not prevent a surviving widow from implementing frozen embryos that were formed from her and her husband’s reproductive material during the lifetime of her husband. In addition, both spouses gave their consent for the specific implementation, by signing the consent for in vitro fertilization procedures on December 20, 2018, following the regulations that were in force at the time. No other consent is required by law nor were the spouses asked to sign it. The embryo transfer would have taken place even before the death of the husband, but it was postponed due to the impaired health of Tijana Prizrenac. After that, her husband died. The above clearly indicates that if hyperstimulation of the ovaries did not happen, which is not rare in such procedures, there would have been a transfer of already created embryos based on the previously given consent.

When it comes to reference to articles 41 and 52, paragraph 2, of the Law, we would like to point out that both of these articles refer to providers and not to users. The law makes a clear distinction between the provider and the user, starting from Article 3, where the terms are defined, and continuing in the other provisions. Article 3, paragraph 1, item 17, stipulates that donation is a voluntary donation of reproductive cells and embryos intended for use in BMAF procedures. In this particular case, no one donated reproductive material to anyone. Spouses entered into the BMAF procedure together, signed the consent to use their reproductive material in the procedure, and can only be considered users, not donors. The same position was taken by the High Court in Belgrade in decision Gž no. 4356/2023 of March 16, 2023, pointing out that the reference of the first-instance court to the provisions of Article 41, which stipulates that in the BMAF procedure it is allowed to use reproductive cells, i.e., embryos of living donors, is unclear, as well as reference to the provisions of Article 49, which prescribes that it is forbidden to give and use reproductive cells, i.e. embryos, without the written consent of the donor, in the case of spouses who started the BMAF procedure, and one of them dies during the procedure. The decision states that “as from the quoted provisions of the Law it follows that they refer to women and men who donate their reproductive cells, i.e. embryos, to help the medical fertilization of third parties, and not to their partners in the sense of the BMAF Law, this referring of the first-instance court to the mentioned provisions of the law is unclear“.

Bearing in mind the above, it is clear that this situation arose from the failure to apply the Law following its principles and norms and in compliance with the Constitution of the Republic of Serbia.

The Constitution of the Republic of Serbia prescribes direct application of the human rights guaranteed by the Constitution as the initial principle of guaranteeing human rights (Article 18, paragraph 1). The Constitution guarantees, and as such, directly applies human and minority rights guaranteed by generally accepted rules of international law, confirmed international treaties and laws, while the law may prescribe the manner of exercising these rights only if this is expressly provided for by the Constitution or if it is necessary for the exercise of a particular right due to its nature, whereby the law must in no case affect the essence of the guaranteed right (paragraph 2) . Paragraph 3 stipulates that the provisions on human and minority rights are interpreted in favor of promoting the values ​​of a democratic society, in accordance with effective international standards of human and minority rights, as well as the practice of international institutions that supervise their implementation (paragraph 3).

The direct application of constitutional provisions on human rights means that the law is not a necessary intermediary between the constitutional norm and its practical application. The court and any other authority that applies the law can refer directly to the constitutional norm and can directly apply the constitutional rule to a specific case.

The provisions of Article 20, paragraphs 1 and 2 of the Constitution, prescribe that human and minority rights guaranteed by the Constitution can be limited by law if such limitation is allowed by the Constitution, for the purposes for which the Constitution allows it, to the extent necessary to satisfy the constitutional purpose of the limitation in a democratic society and without encroaching on the essence of the guaranteed rights and that the achieved level of human and minority rights cannot be reduced.

The provisions of Article 21 of the Constitution stipulate that everyone is equal before the Constitution and the law (paragraph 1); that everyone has the right to equal legal protection, without discrimination (paragraph 2); that any discrimination, direct or indirect, on any basis, and in particular on the basis of race, gender, national affiliation, social origin, birth, religion, political or other belief, property status, culture, language, age and mental or physical disability is prohibited (paragraph 3) and that the special measures that the Republic of Serbia may introduce in order to achieve full equality of persons or groups of persons who are essentially in an unequal position with other citizens are not considered discrimination (paragraph 4).

Article 24 of the Constitution of the Republic of Serbia guarantees the inviolability of human life. Directly related to the guarantee of the right to life, in a broader sense, are the constitutional provisions that guarantee the freedom to decide on childbirth (Article 63, paragraph 1). The right to life and the freedom to decide on childbirth belong to the group of absolutely protected rights (Article 202, paragraph 4), and as such cannot be limited in any way, not even during times of emergency or war.

The constitutional prohibition of discrimination is elaborated in more detail in the Law on Prohibition of Discrimination, which defines discrimination as any unjustified distinction or unequal treatment, i.e. omission (exclusion, limitation, or giving priority), in relation to persons or groups as well as to members of their families, or persons close to them, in an open or covert manner, which is based on race, skin color, ancestry, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, sex, gender, gender identity, sexual orientation, sexual characteristics, income level, property status, birth, genetic characteristics, health status, disability, marital and family status, court convictions, age, appearance, membership in political, trade union and other organizations and other real or assumed personal characteristics^[1]. Article 27 of this law prohibits discrimination against a person or a group of persons with regard to their health condition, as well as against their family members. Paragraph 2 of this article stipulates, among other things, that discrimination from paragraph 1 of this article exists especially if a person or group of persons is unjustifiably denied the provision of health services due to their personal characteristics, and if special conditions for the provision of health services are set that are not justified by medical reasons. Article 33, paragraph 1, item 9 of the Law on the Prohibition of Discrimination stipulates that the Commissioner sends recommendations of measures to public authorities and other persons for the realization of equality and protection against discrimination.

In view of the above, it follows that Tijana’s personal characteristics, health condition, as well as her marital and family status (widow) are the reasons why she is prevented from using shared embryos, which were created by the will of both spouses, with the aim of having a child.

Bearing in mind that the embryos were created from the reproductive material of both spouses, that the embryo storage period expires on January 20, 2024, and that no one asked Tijana Prizrenac Nedeljković for a statement on the further fate of the reproductive material, as the person from whom the reproductive material originates, in accordance with Article 51, paragraph 6 of the Law on Biomedically Assisted Fertilization, based on the legal competences from Article 33, paragraph 1, item 9, of the Law on Prohibition of Discrimination, the Commissioner recommends the “Srebo Medical” Health Institution to take all measures to further preserve the embryos after January 20, 2024, as well as measures for further protection and exercise of the right of Tijana Prizrenac Nedeljković to continue the initiated BMAF procedure.

The Health Institution “Srebo medical” will inform the Commissioner for the Protection of Equality about the activities that will be undertaken in order to implement this recommendation, within 30 days from the date of receipt of the recommendation of measures for achieving equality.

Against this recommendation of measures to achieve equality, in accordance with the law, no appeal or any other legal remedy is allowed.

^[1] Law on Prohibition of Discrimination (“Official Gazette of the RS” No. 22/09 and 52/21), Article 2, Paragraph 1, Item 1.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković