Reproductive rights in Hungarian law: A new right to assisted procreation?

Health and Human Rights

Volumn 4, Issue 2, 2000, Pages 197-218

  Sándor, Judit ^a  

^a CENTRAL EUROPEAN UNIVERSITY   (Hungary)

Author keywords

[No Author keywords available]

Indexed keywords

HEALTH POLICY; HEALTH SERVICES;

ARTICLE; EUROPE; FEMALE; FEMALE INFERTILITY; FERTILIZATION IN VITRO; HEALTH CARE POLICY; HUMAN; HUMAN RIGHTS; HUNGARY; LEGAL ASPECT; MOTHER; REPRODUCTION; THERAPEUTIC ABORTION; UNITED KINGDOM; UNITED STATES;

ABORTION, LEGAL; EUROPE; FEMALE; FERTILIZATION IN VITRO; GREAT BRITAIN; HEALTH CARE REFORM; HUMAN RIGHTS; HUMANS; HUNGARY; INFERTILITY, FEMALE; REPRODUCTION; SURROGATE MOTHERS; UNITED STATES;

HUNGARY;

EID: 27644434067     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: 10.2307/4065201     Document Type: Article

References (32)

1. Programme of Action of the International Conference on Population and Development, Report of the International Conference on Population and Development, 5-13 September 1994, UN Doc. A/CONF.171/13 (18 October 1994), para. 7.2.
2. Center for Reproductive Law and Policy, Women of the World: Central East Europe and the Former Soviet Union (New York: CRLP, forthcoming).
3. L. Kovács, "Contraception: Current Use and Future Perspectives," in WHO Scientific Working Group on Reproductive Health Research (ed), Towards Better Reproductive Health in Eastern Europe (Budapest: CEU Press, 1999), pp. 88-90.
4. J. Sándor, "From Ministry Orders towards the Constitutional Debate: Lessons Drawn from the Past 50 Years of Abortion Laws in Hungary," Medicine and Law 1999, 18: 389-409.
5. Article 16.1 of the Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III), UN GAOR, Res. 71, UN Doc. A/810 (1948)
6. and Article 23 of the International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966), both set out "the right to marry and to found a family."
7. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46, at 193, UN Doc. A/34/46 (1979), requires States parties to "ensure, on a basis of equality of men and women, . . . the same rights to decide freely on the number and spacing of their children. . . ."
8. ICPD Programme of Action (see note 1), para. 7.25.
9. See Sándor (note 4); J. Kis, "Az Alkotmánybiróság a terhességmegszakitásról," Fundamentum 1998, 3: 97-113;
10. K. L. Scheppele, "Európai alkotmányos konszenzus az abortuszról," Fundamentum 1998, 3: 114-120;
11. J. Sándor, "Újabb érvek a terhességmegszakitás alkotmányosságáról," Fundamentum 1998, 3: 121-134.
12. Hungarian Parliamentary Act No. CLIV of 1997, ch. 9, and 1998 Ministry of Welfare decree on "Extraordinary Procedures of Human Reproduction, the Treatment of Embryos and Gametes, and Their Storage" [30/1998 (VI.24.) NM].
13. In the "empty egg" procedure, the nucleus of a donor egg is removed and replaced with that of the genetic mother.
14. Strangely enough, even egg donation and surrogacy are not understood as offering life to the other couple.
15. ICPD Programme of Action (see note 1), para. 7.3.
16. ICPD Programme of Action (see note 1), ch. 2, Principle 1.
17. In the Matter of Baby M, Supreme Court of New Jersey, 1988, 109 N.J. 396 537 A.2d 1227. The case is cited worldwide to justify bans on surrogacy. The facts of the case support the view that surrogate mothers should be prohibited from making a contract that forces them to surrender the child, rather than allowing them to change their mind. In the Baby M case the surrogacy contract was invalidated, but the gestational mother was granted only visitation rights.
18. Personal communications from members of the Hungarian Family Protection Service.
19. J. Sándor, "The Most Public of Private Issues: Abortion Laws and the Hungarian Constitutional Court" (unpublished manuscript).
20. The constant difficulties in legal disputes between health care providers and consumers had made clear the need for this form of regulation. Prior to the 1997 Health Act, courts and legal advocates had had to apply an indirect method to derive patients' rights. This method was partly based on the interpretation of the Health Act and the Civil Code, in which protection for personal rights was formulated in a general clausula rather than an enumeration of rights. The resulting interpretations were often vague, and there was a great deal of room for judicial discretion. This uncertainty did not satisfy the requirements of constitutionalism and the rule of law of the post-1989 democracy. At the same time, assisted procreation was almost totally unknown to the general public. Legal uncertainty around these services had contributed to a lack of transparency around in-vitro clinics.
21. Hungarian Parliamentary Act of 1997 (see note 8), ch. 9, art. 165-87.
22. 1998 Ministry of Welfare decree (see note 8).
23. The exceptions were artificial insemination and some insurance-related aspects of in-vitro fertilization.
24. M. Donalska and D. Evans, "Patients' Perceptions of Assisted Conception Services," in D. Evans (ed), Creating the Child (The Hague: Kluwer Law International, 1996), pp. 291-301.
25. T. S. Pongrátz and E. Molnár, Kisgyermekes apák és anyák szülési és, családi attitûdjei négy európai országban, KSH NKI Kutatási jelentések (Report of the Central Office of Statistics), 1994, 52.sz., p. 37.
26. WHO Scientific Working Group on Reproductive Health Research (see note 3).
27. Davis v. Davis, 842 S.W.2d 588, 1992.
28. The recently introduced dual terminology in the Hungarian language between commercial and non-commercial forms of surrogacy reflects the felt distinction between them. While commercial surrogacy is known as béranyaság (motherhood for salary), non-commercial surrogacy is known as dajkateihesseg (nurse-motherhood). This latter expression has no pejorative connotation; on the contrary, it has an emotionally positive association with wet-nursing.
29. Recently the Parliament enacted a short amendment to the 1997 Health Act that removed surrogacy from the text of the Parliamentary Act (Act No. CXIX of 1999, which entered into force in January 2000). The reason for this important legislative change was the failure to adopt necessary changes to family law to make it compatible with surrogacy agreements.
30. See S. Firestone, The Dialectics of Sex (New York: Quill, 1970).
31. One example of these new techniques is intra-cytoplasmic sperm injection, in which sperm are surgically collected and inserted into the egg in order to increase the chances of successful fertilization.
32. ICPD Programme of Action (see note 1), para. 7.3; Platform for Action of the Fourth World Conference on Women, September 1995, UN Doc. A/CONF.177/20 (October 17, 1995), para. 95.