Assisted human reproduction and surplus cryopreserved embryos: gaps in brazilian law and contributions from foreign experiences

Abstract

Due to the family planning freedom´s principle, family entities can decide upon  matters related to procreation under the State´s duty to provide necessary assistance and protection to the family, based on the coexistence of fundamental rights inherent to its members. The exploratory research presentes issues about assisted human reproduction and cryopreserved embryos, through a brief bibliographical, normative and jurisprudential review. Initially, family planning was addressed as a fundamental right and its impacts on the concept of filiation, considering the new family structures formed through assisted human reproduction techniques. An analysis of the contemporary bioethical and legal landscape was sought, highlighting the normative scarcity and also mentioning some foreign regulatory instruments. Furthermore, theories regarding the civil status of the unborn child and its relevance to defining the legal nature of the embryo are studied. As results concerning surplus cryopreserved embryos, the indispensability of informed consent was emphasized, and its impact on resolving conflicts arising from the dissolution of family unions was addressed, considering the possible destinations of material collected during marriage or domestic partnerships in Brazil´s legal system.