THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH Veelke derckx and Ewoud Hondius IV C3 Introduction In June 2001 the Dutch abortion ship belonging to the pressure group Women On Waves set sail for Ireland. The intention was to carry out abortions off the Irish coast. During the same(Northern Hem isphere)summer there were heated discussions taking place in many countries concerning the status of the em bryo and f gametes(reproductive cells). As a result President Bush decided to finance research into stem cells, but only under strict restrictions. 2 In the US a human em bryo was cloned for the first tme in November 2001. The subject of the em bryo is occupy ing the minds of, among others, many politicians, lawyers, ethicists and medical scientists on a worldwide basis. The great strides being made in the development of medical science and technology brings with it increased possibilities, but also many dilemmas. How has the Dutch legislator dealt with these dilemmas, also considering the intemational regulations on this point? In this paper we will provide a brief overview of the status and the protection of the embryo in the Netherlands where by consideration will be given to, among other things, abortion cloning, control and scientific research. The Embryos Bill playsa large role in all of this. We will, furthermore look at the connection with prenatal errors General remarks on the status of the embryo It should first of all be stated that where in this article we speak of the embryo, what we mean is the human embryonic offspring, regardless of in which development stage it may be in or whether or not it is with in the body of a pregnant woman. An em bryo can exist within the human body, in vivo, as well as outside the human body in vitro. 3 The explosive growth in the various possibilities in the field of reproductive dicine has given rise to qu st of Lecturer in Health Law, University of Utrecht Professorof Civil Law, University of Utrecht. Ireland has the most stringent abortion legislation n Europe. In the Netherlands abortion is available subject to legally determined conditions(seesection 9). De volkskrant, II August 2001 3. By means of in-vitro fertilization(n-vitro meaning wthin glass In the case of n-vitro fertil isation spermatozoa are brought mto contact with the oocytes in a glass dish so that the oocytes can thereby be fertilized. In this way embryos can come into beingwhich may then be impanted into the woman uterus. In the Nether lands thereare some 12, 000 IVF treatments eachyear and with the aid of IVF some 1800 children are born on a yearly bass(source: Mistry of Health, Welfare and Sports). In thi paper the legal status of the embryo is discussed, not its moral status. Although it I indeed true that moral and kgal status are interconnected, here they should be differentiated. If a status i attributed to an embryo, ths still does not mean that it has a legal status, Leenen Gevers, 2000, P. 130
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW Veelke Derckx* and Ewoud Hondius** IV C 3 1 Introduction In June 2001 the Dutch abortion ship belonging to the pressure group Women On Waves set sail for Ireland. The intention wa s to carry out abortions off the Irish coast. 1 During the same (Northern Hemisphere) summer there were heated discussions taking place in many countries concerning the status of the embryo and of gametes (reproductive cells). As a result President Bush decided to finance research into stem cells, but only under strict restrictions.2 In the US a human embryo was cloned for the first time in November 2001. The subject of the embryo is occupying the minds of, among others, many politicians, lawyers, ethicists and medical scientists on a worldwide basis. The great strides being made in the development of medical science and technology brings with it increased possibilities, but also many dilemmas. How has the Dutch legislator dealt with these dilemmas, also considering the international regulations on this point? In this paper we will provide a brief overview of the status and the protection of the embryo in the Netherlands whereby consideration will be given to, among other things, abortion, cloning, control and scientific research. The Embryos Bill plays a large role in all of this. We will, furthermore, look at the possibilities for obtaining damages in connection with prenatal errors. 2 General remarks on the status of the embryo It should first of all be stated that where in this article we speak of the embryo, what we mean is the human embryonic offspring, regardless of in which development stage it may be in or whether or not it is within the body of a pregnant woman. An embryo can exist within the human body, in vivo, as well as outside the human body in vitro. 3 The explosive growth in the various possibilities in the field of reproductive medicine has given rise to questions concerning the use of embryos. The status4 of * Lecturer in Health Law, University of Utrecht. ** Professor of Civil Law, University of Utrecht. 1. Ireland has the most stringent abortion legislation in Europe. In the Netherlands abortion is available subject to legally determined conditions (see section 9). 2. De Volkskrant, 11 August 2001. 3. By means of in-vitro fertilization (in-vitro meaning within glass). In the case of in-vitro fertilisation spermatozoa are brought into contact with the oocytes in a glass dish so that the oocytes can thereby be fertilized. In this way embryos can come into being which may then be implanted into the woman s uterus. In the Netherlands there are some 12,000 IVF treatments each year and with the aid of IVF some 1800 children are born on a yearly basis (source: Ministry of Health, Welfare and Sports). 4. In this paper the legal status of the embryo is discussed, not its moral status. Although it is indeed true that moral and legal status are interconnected, here they should be differentiated. If a certain moral status is attributed to an embryo, this still does not mean that it has a legal status, Leenen/Gevers, 2000, p. 130
DERCKX/HONDIUS stances adopted concerning the position the embryo range from comprehensive and all-embracing protection( from the moment of conception) to very weak protection. Many (Western) European ountries already have legislation in place dea ling with activities connected with embryos or have tabled bills to this effect. The mo legislation in this field may be found in Austria, France, Germany, Norway and Spain. The broadest legislation is that of the UK. Denmark, Finland and Sweden lie somewhere in between whilst Italy and Luxembourg have tabled bills on this In The Netherlands, the Lower House of Parliament after two previous attempts ratified a bill with regard to the creation and use of em bryos as well as control as far as gametes and em bryos are concerned( the Embryos Bill).Contrary to what the title Embryos Bill implies, the bill is not only concerned with embryos but also with various aspects of the ordinary use of fertilization techniques and the consequences thereof. The need for legal regulation was linked to the signing of the Council of Europe s Convention for the protection of human rights and the dignity of the human being with regard to the application of biology and medicine (Bio-ethics Treaty).8 Although the Netherlands has signed this convention, it has still not yet been ratified. If the Netherands were to ratify this Convention without reservation, then it would be directly bound by its provisions. 9 The status and protection of the human embryo in vivo and in vitro is discussed belo Is an embryo a legal subject? The question whether an embryo is a legal subject is of importance for its le gal rotection. If this question could be answered in the positive, this would certainly For an overview see Explanatory Memorandum, 2000M0 1, 27423, no 3, P. 60et seq Bill containng rules relating to theuseof gametes and embryos(Embryos Bil), Parliamentary Document IL. 200001.27423 nos 1- A specific choice has been made for one integral bill cons ider ng the inextricable connection between these subjects, Explanatory Memorandum, 2000/01, 27 423, no. 3. Embryos and gametes are in fact bodily material. In the Netherlands there s abo an Act n themaking conceming control over bodily materials. However, because of the ability t change into an embryo and subseq uently into a human being gametes and embryos have, according t the legislator, adifferent character and are more emotionally charged than other bodily material They are therefore excluded from the ambt of the Bodily Materials Act( Explanatory Memorandum, 2000/01, 27423, no 3, p. 13) Convention on Human Rights and Biomedicine ( Bio-ethics Treaty), Council of Europe, Ov ideo 4 April 1997, Trb. 1997, 113. This convention, a so-called framework convention, contains a number of basic prnciples and forms a foundation for the elaboration of specific subjects within various protocols, H. Nys 1998, p 24 provisions of the Constitution, n the Netherlands it s specifically laid down n the Constitution(Art 94)that treaties occupy a position over and above the law. The provis ions n this Convention would thereby have to be directly applied by the Duthcourts A legal subject is a bearer ofrights and obligations
DERCKX/HONDIUS 2 the embryo is controversial; the various stances adopted concerning the position of the embryo range from comprehensive and all-embracing protection (from the moment of conception) to very weak protection. Many (Western) European countries already have legislation in place dealing with activities connected with gametes and embryos or have tabled bills to this effect. The most restrained legislation in this field may be found in Austria, France, Germany, Norway and Spain. The broadest legislation is that of the UK. Denmark, Finland and Sweden lie somewhere in between whilst Italy and Luxembourg have tabled bills on this subject.5 In The Netherlands, the Lower House of Parliament after two previous attempts ratified a bill with regard to the creation and use of embryos as well as control as far as gametes and embryos are concerned (the Embryos Bill). 6 Contrary to what the title Embryos Bill implies, the bill is not only concerned with embryos but also with various aspects of the ordinary use of fertilization techniques and the consequences thereof.7 The need for legal regulation was linked to the signing of the Council of Europe s Convention for the protection of human rights and the dignity of the human being with regard to the application of biology and medicine (Bio-ethics Treaty).8 Although the Netherlands has signed this convention, it has still not yet been ratified. If the Netherlands were to ratify this Convention without reservation, then it would be directly bound by its provisions. 9 The status and protection of the human embryo in vivo and in vitro is discussed below. 3 Is an embryo a legal subject? The question whether an embryo is a legal subject10 is of importance for its legal protection. If this question could be answered in the positive, this would certainly 5. For an overview see Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 60 et seq. 6. Bill containing rules relating to the use of gametes and embryos (Embryos Bill), Parliamentary Documents II, 2000/01, 27 423, nos. 1-2. 7. A specific choice has been made for one integral bill considering the inextricable connection between these subjects, Explanatory Memorandum, 2000/01, 27 423, no. 3. Embryos and gametes are in fact bodily material. In the Netherlands there is also an Act in the making concerning control over bodily materials. However, because of the ability to change into an embryo and subsequently into a human being, gametes and embryos have, according to the legislator, a different character and are more emotionally charged than other bodily material. They are therefore excluded from the ambit of the Bodily Materials Act (Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 13). 8. Convention on Human Rights and Biomedicine (Bio-ethics Treaty), Council of Europe, Ovideo 4 April 1997, Trb. 1997, 113. This convention, a so-called framework convention, contains a number of basic principles and forms a foundation for the elaboration of specific subjects within various protocols, H. Nys 1998, p. 24. 9. Although, in Germany for example, the courts can test the applicability of a treaty against the provisions of the Constitution, in the Netherlands it is specifically laid down in the Constitution (Art. 94) that treaties occupy a position over and above the law. The provisions in this Convention would thereby have to be directly applied by the Dutch courts. 10. A legal subject is a bearer of rights and obligations
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCHLAW mean that an embryo would deserve protection. In the Netherlands, however, the leamed opinion is that an embryo is not a legal subject. I This is derived from, amongst other things, Art. 1: 2 of the Dutch Civil Code where the rule nasciturus pro iam nato habetur is laid down. which means that the child with which the woman is pregnant 2 is considered as ha vinga lready been bom if its interests thereby so require the child is not born alive, then this respect will never have ex isted in the first pace As soon as one is borm one therefore enters the legal community as the bearer of subjective rights. 13 A recent Dutch interpretative declaration which was made upon signing the Bio-ethics Treaty and which concemed the prohibition on cloning replication of human individuals ) confirms the view that an embryo is not considered to be a legal subject in the Netherlands. In this interpretative declaration the Netherlands has stated that the notion of human being is understood to mean a human being who has already been bom. 14 4 The status of the embryo: the theory of progressive legal protection In health law the doctrinal status of the human embryo has developed, which is the theory of progressive legal protection. 5 The human embryo has is own legal protection, it is neither a legal subject, nora legal object o This status is linked to the embryo s different stages of development. These transitional stages are the blastogenesis, the first stage from the moment of conception to the implantation or nidation after around 14 days. Secondly, the stage following on from nidation until the moment when the foetus has a vable independent existence, and fina lly the stage from viable independent existence until the actual birth. These stages have certain onsequences under the law after nidation there is a foetus with which the woman is pregnant, an abortion can no longer be carried out if the foetus can be considered to have atta ined a vable independent existence. These legal components together provide an impression of the protection, or ack of, accorded to the dignity of unbom life during the various sta ges of development After the completion of the implantation one speaks of status potentials: if a num ber of conditions are fulfilled, then the embryo has the potential to grow into a person. The protection of the embryo dignity is somewhat limited during this stage After the implantation up until the time of birth one can speak of status nascendi: the 11. Leenen/Gevers, 2000, P. 136 a woman s pregnant as soon as the embryo becomes mplanted in the uterus, Leenen / Geve 0,p.132 Abso when the child has only lived for a fewmnutes, it is stillrecognsed that ithas been alegal subject. This also applies to a child with serous abnormalities and to monstra, anencephaliesetc. Letter of 22 April 1999 from the Minster of Health, Welfare and Sports, CSZME-994626 The Protocol leaves the interpretation of thenotion of human being to the Member States. For the derlying reasons for this dedaration see section 6.2 Among others, see Leenen/Gevers, 2000. For d agreement with this theory see Van der Burg, 1994 Te Braake, 2001, P. 7. A legal objectis an object of persons rights
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 3 mean that an embryo would deserve protection. In the Netherlands, however, the learned opinion is that an embryo is not a legal subject.11 This is derived from, amongst other things, Art. 1:2 of the Dutch Civil Code where the rule nasciturus pro iam nato habetur is laid down, which means that the child with which the woman is pregnant12 is considered as having already been born if its interests thereby so require. If the child is not born alive, then this respect will never have existed in the first place. As soon as one is born one therefore enters the legal community as the bearer of subjective rights.13 A recent Dutch interpretative declaration which was made upon signing the Bio-ethics Treaty and which concerned the prohibition on cloning ( replication of human individuals ), confirms the view that an embryo is not considered to be a legal subject in the Netherlands. In this interpretative declaration the Netherlands has stated that the notion of human being is understood to mean a human being who has already been born . 14 4 The status of the embryo: the theory of progressive legal protection In health law the doctrinal status of the human embryo has developed, which is the theory of progressive legal protection. 15 The human embryo has is own legal protection, it is neither a legal subject, nor a legal object.16 This status is linked to the embryo s different stages of development. These transitional stages are the blastogenesis, the first stage from the moment of conception to the implantation or nidation after around 14 days. Secondly, the stage following on from nidation until the moment when the foetus has a viable independent existence, and finally the stage from viable independent existence until the actual birth. These stages have certain consequences under the law: after nidation there is a foetus with which the woman is pregnant; an abortion can no longer be carried out if the foetus can be considered to have attained a viable independent existence.17 These legal components together provide an impression of the protection, or lack of, accorded to the dignity of unborn life during the various stages of development. After the completion of the implantation one speaks of status potentialis: if a number of conditions are fulfilled, then the embryo has the potential to grow into a person. The protection of the embryo s dignity is somewhat limited during this stage. After the implantation up until the time of birth one can speak of status nascendi: the 11. Leenen/Gevers, 2000, p. 136. 12. A woman is pregnant as soon as the embryo becomes implanted in the uterus, Leenen/Gevers, 2000, p. 132. 13. Also when the child has only lived for a few minutes, it is still recognised that it has been a legal subject. This also applies to a child with serious abnormalities and to monstra, anencephalies etc. 14. Letter of 22 April 1999 from the Minister of Health, Welfare and Sports, CSZ/ME-994626. The Protocol leaves the interpretation of the notion of human being to the Member States. For the underlying reasons for this declaration see section 6.2. 15. Among others, see Leenen/Gevers, 2000. For disagreement with this theory see Van der Burg, 1994. 16. Te Braake, 2001, p. 7. A legal object is an object of persons rights. 17. See supra
DERCKX/HONDIUS foetus on the road to being born. By the process of implantation there exists a foetus with which the woman is pregnant. 8 The embryo will be able to rea lise its potential unless further development will be interrupted (for example by the pregnancy being terminated). The progressive protection of dignity entails that, according to the development stage in which the human foetus is in, an ascending level of legal protection is already granted. In the status nascendi, for example, there is a greater degree of protection than during the preceding stage but it is more limited than that of a child which has already been born. The protection of the human embryo rests on the intrinsic value of the em bryo, regardless of whether it is an in-vivo or in-vitro 5 The embryo in international human rights treaties In connection with abortus provoca tus in particuar, the question has arisen in The Netherlands as to whether an em bryo falls within the ambit of the human rights treaties, namely the Universal Declaration of Human Rights(1948), the Intemational Covenant on Civil and Political Rights(1966), and the European Convention on Human Rights and Fundamental Freedoms(ECHR).20 Art. 3 of the Declaration detem ines: everyone has the right to life, liberty and security of person. Art. 6 of the International Covenant states: every human being has the inherent right to life Leenen has deduced. among other things from the intentions of the drafters. the system of the treaties and the fact that a number of the included rights hardly relate to people who have just been bom, that the embryo cannot fall within the ambit of these treaties 21 Art. 2 ECHR determines that everyone s right to life shall be protected by law and this provision is not only advanced in theabortion(and euthanasia )debates, but also gives rise to questions in the case of modem medical reproduction techniques with regard to the interpretation of this particulararticle Important in this respect is also Art. 3 which states that no one may be subjected to torture or to inhuman or degrading treatment or punishment. The European Commission of luman Rights has in antime on numerous occasions considered the adm issibility of abortus provocatus and thereby also the question of whether the embryo falls within the ambit of the ECHR. From the cases of X v. UK22 and Hercz v. Nonway23 it can be deduced that the embryo does not in principle fall within the protection of the ECHR and that abortion provocatus is allowed. 4 It is possible that Sutorius, 1993, P. 236 thinks otherwse. According to him the status nascendi must be limited up until the stage of viable independent existence. Te Braake, 2001, P.8. Rome. 4 November 1950. Leenen/Gevers, 2000, P. 141 13 May 1980, Application no 8416/78, NJ 1981, 110 19 May 1992, Tijdschrift voor Gezondheidsrecht 1993/35 Leenen, 1994, Leenen/Gevers, 2000, p. 143. See also De Bruiin-Luckers who indeed recognses that the decis ions of the European Commiss on do not provide a clear answer t the question of whether and when the foetus can derive rights from the eChr, but who nevertheless
DERCKX/HONDIUS 4 foetus on the road to being born. By the process of implantation there exists a foetus with which the woman is pregnant.18 The embryo will be able to realise its potential, unless further development will be interrupted (for example by the pregnancy being terminated). The progressive protection of dignity entails that, according to the development stage in which the human foetus is in, an ascending level of legal protection is already granted. In the status nascendi, for example, there is a greater degree of protection than during the preceding stage, but it is more limited than that of a child which has already been born. The protection of the human embryo rests on the intrinsic value of the embryo, regardless of whether it is an in-vivo or in-vitro embryo.19 5 The embryo in international human rights treaties In connection with abortus provocatus in particular, the question has arisen in The Netherlands as to whether an embryo falls within the ambit of the human rights treaties, namely the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the European Convention on Human Rights and Fundamental Freedoms (ECHR).20 Art. 3 of the Declaration determines: everyone has the right to life, liberty and security of person . Art. 6 of the International Covenant states: every human being has the inherent right to life . Leenen has deduced, among other things from the intentions of the drafters, the system of the treaties and the fact that a number of the included rights hardly relate to people who have just been born, that the embryo cannot fall within the ambit of these treaties.21 Art. 2 ECHR determines that everyone s right to life shall be protected by law and this provision is not only advanced in the abortion (and euthanasia) debates, but also gives rise to questions in the case of modern medical reproduction techniques with regard to the interpretation of this particular article. Important in this respect is also Art. 3 which states that no one may be subjected to torture or to inhuman or degrading treatment or punishment. The European Commission of Human Rights has in the meantime on numerous occasions considered the admissibility of abortus provocatus and thereby also the question of whether the embryo falls within the ambit of the ECHR. From the cases of X v. UK22 and Hercz v. Norway23 it can be deduced that the embryo does not in principle fall within the protection of the ECHR and that abortion provocatus is allowed.24 It is possible that 18. Sutorius, 1993, p. 236 thinks otherwise. According to him the status nascendi must be limited up until the stage of viable independent existence. 19. Te Braake, 2001, p. 8. 20. Rome, 4 November 1950. 21. Leenen/Gevers, 2000, p. 141. 22. 13 May 1980, Application no. 8416/78, NJ 1981, 110. 23. 19 May 1992, Tijdschrift voor Gezondheidsrecht 1993/35. 24. Leenen, 1994, Leenen/Gevers, 2000, p. 143. See also De Bruijn-Lückers who indeed recognises that the decisions of the European Commission do not provide a clear answer to the question of whether and when the foetus can derive rights from the ECHR, but who nevertheless
THE RIGHTS OF THEEMBRYO AND THE FOETUS UNDER DUTCHLAW In an exceptional case an exception can be made for a foetus which has passed the initial stage and which can satisfy the exception under Art. 2. However, no definitive conclusion can be derived from the Strasbourg case law as to whether the unbom foetus can fall within the ambit of Art. 2 ECHR 2 of the Bio-ethics Treaty couples the terms dignity and identity to human and the notion of integrity to the tem everyone. It is largely fruitless to define the term everyone considering the various interpretations of this concept in the Member States. 26 The Protocol on cloning also lea ves the interpretation of the notion of human being to the member States. According to Kits Nieuwenkamp plies to human life from the moment of everyone relates to life which has been born. Thereby, according to her, there Mem ber States s, flict between the convention and the abortion legislation in some appears to be a cor According to Leenen, in the minds of the drafters of the convention the embryo s dignity is the subject of a certain degree of protection during all the development stages. From the fact that, according to Art. 18, scientif ic research into the embryo in-vitro is in principle allowed, it would seem that there is no absolute protection during this stage The embryos bill 6.O The Embryos Bill sets limits on the use of gametes and embryos. A number of activities are considered to be ethica lly impem issible and are prohib ited; examples thereof are clonings29, the choosing of a ba by s gender for non-medical reasons ad combining cells from human and animal embryos(Arts. 24 and 25 Embryos Bill) Before adressing a number of specific details of the Embryos Bill, the aim and starting point of the bill will be discussed as well as the definition of the term embryo as mentioned in the bill. The legislator s general point of departure is human dignity and the principle of respect for human life in general. 30 Any violation of this orinciple of respect for human life is justified if other values, such as the welfare of the future child, the treatment of patients or the promotion of their health and the welfare of infertile couples, are considered to be of greater importance. There is no specific mention of the progressive protection of dignity. From the fact that it is forbidden to allow an embryo to develop outside the human body for fnds points of departure, namely in the Hercz case, for the proposition that the foetus can derive ights from the ECHR(1994, P. 141) Leenen/Gevers, 2000, p. 143 Explanatory Report Directorate ofLegal Affairs, Strasbourg, January 1997, pp. 18 and 19 Kits Nieuwenkamp, 1998, P. 28 See supra. 30 Explanatory Memorandum, 2000/01, 27423, no 3, P 5
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 5 in an exceptional case an exception can be made for a foetus which has passed the initial stage and which can satisfy the exception under Art. 2. However, no definitive conclusion can be derived from the Strasbourg case law as to whether the unborn foetus can fall within the ambit of Art. 2 ECHR.25 Art. 1 of the Bio-ethics Treaty couples the terms dignity and identity to human being and the notion of integrity to the term everyone . It is largely fruitless to define the term everyone considering the various interpretations of this concept in the Member States.26 The Protocol on cloning also leaves the interpretation of the notion of human being to the Member States. According to Kits Nieuwenkamp human being applies to human life from the moment of conception and the term everyone relates to life which has been born. Thereby, according to her, there appears to be a conflict between the convention and the abortion legislation in some Member States.27 According to Leenen, in the minds of the drafters of the convention the embryo s dignity is the subject of a certain degree of protection during all the development stages. From the fact that, according to Art. 18, scientific research into the embryo in-vitro is in principle allowed, it would seem that there is no absolute protection during this stage.28 6 The Embryos Bill 6.1 Objective and points of departure The Embryos Bill sets limits on the use of gametes and embryos. A number of activities are considered to be ethically impermissible and are prohibited; examples thereof are clonings29, the choosing of a baby s gender for non-medical reasons and combining cells from human and animal embryos (Arts. 24 and 25 Embryos Bill). Before adressing a number of specific details of the Embryos Bill, the aim and starting point of the bill will be discussed as well as the definition of the term embryo as mentioned in the bill. The legislator s general point of departure is human dignity and the principle of respect for human life in general. 30 Any violation of this principle of respect for human life is justified if other values, such as the welfare of the future child, the treatment of patients or the promotion of their health and the welfare of infertile couples, are considered to be of greater importance. There is no specific mention of the progressive protection of dignity. From the fact that it is forbidden to allow an embryo to develop outside the human body for finds points of departure, namely in the Hercz case, for the proposition that the foetus can derive rights from the ECHR (1994, p. 141). 25. Leenen/Gevers, 2000, p. 143. 26. Explanatory Report, Directorate of Legal Affairs, Strasbourg, January 1997, pp. 18 and 19. 27. Kits Nieuwenkamp, 1998, p. 28. 28. Leenen/Gevers, 2000, p. 144. 29. See supra. 30. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 5
DERCKX/HONDIUS longer than 14 days a limit on which for ethical reasons an overall intemational consensus exists it can possibly be concluded that the theory of the progressive protection of dignity has made itself felt in the Embryos Bill According to the Embryos Bill the embryo is a cell or a connected aggregate of ells with the capacity to develop into a human being(Art. I sub c Embryos Bill This definition is connected to the fact that an em bryo, with the current stage of scientific development, can come into existence in various ways and the protection of dignity does not depend on the way in which it has come into being 32 The legislator wanted to include all the ways in which an embryo can come into being within the definition. By also including the cell within this defin ition, the stage immediately following the fusion of the ovum and the sperm cell is also included33 Crucial in this respect is the presence of a potental to grow into a person In our opinion the definition ofan embryo does create confusion now that it does not follow the biological reality. Since, according to the definition, a sex cell is already an embryo in itself, as it is aferall a cell with the capacity to develop into a human being A foetus is an em bryo which is to be found in the human body(Art. I sub d Embryos Bill). The notion of an embryo is more comprehensive: a foetus is also an embryo All the development stages of the embryo up until the actual birth fall within the scope of the definition and thereby also underthe Em bryos Bill 6.2 Cloning The Embryos Bill lays down the bounderies with respect to cloning. There is a difference between reproductive and therapeutic cloning. Reproductive cloning is the making of genetica lly identical individuals. From an intemational point of view there is large-scale agreement as to the unacceptability of this technique. 4The Dutch Explanatory Memorandum, 200001, 27423, no 3, P. 41 32 In the first place by fertilizing an ovum whereby an ovum and a sperm cell are fused toget Ths can take place within the human body in vio, or outside the human body n vtD. Another method s by way ofsplittingone or moreof theembryo s totipotentcelbs( these are cells which have the poss ability ndependenthy to grow int a new embryo) It i also poss ible to create an embryo by making use of cells from an embryonic stem-cell line A combination s then made of cells whch have originated from two different embryos(chimaera). Finally, t s n prnciple also poss ble apply the technque already used n the case of animals: the nucleus of an animal s bodily cell s transplanted nt an animal s female gamete with the original nucleus bengremoved If this would occur then there s the potential to grow nto a person, Explanatory Memorandum, 200001, 27423, The ovum and the sperm cell will fuse tgether if, after thesuccessful penetration of the ovt wall by thespem cell, the cell membranes of the two sex celk fuse. Although immed ately after thE event two independent cell nuclei can in fact be differentiated, t is the case that there s already an embryo in the sense of the Bill, Explanatory Memorandum, 2000/01, 27423, no 3, p. 49. Alongside the Council of Europe(Supplementary Protocol to the Bio-ethics Treaty), intemational organisations such as the World Health Organ sation and UNESCO have made declarations to the effect that the cloning of persons s not admissible as it s contrary t human dignity and s mmoral. There s also a European Commss ion resolution which calls upon Member States to prohibit therapeutic cloning and consumptive embryo research
DERCKX/HONDIUS 6 longer than 14 days a limit on which for ethical reasons an overall international consensus exists31 it can possibly be concluded that the theory of the progressive protection of dignity has made itself felt in the Embryos Bill. According to the Embryos Bill the embryo is a cell or a connected aggregate of cells with the capacity to develop into a human being (Art. 1 sub. c Embryos Bill). This definition is connected to the fact that an embryo, with the current stage of scientific development, can come into existence in various ways and the protection of dignity does not depend on the way in which it has come into being.32 The legislator wanted to include all the ways in which an embryo can come into being within the definition. By also including the cell within this definition, the stage immediately following the fusion of the ovum and the sperm cell is also included.33 Crucial in this respect is the presence of a potential to grow into a person. In our opinion the definition of an embryo does create confusion now that it does not follow the biological reality. Since, according to the definition, a sex cell is already an embryo in itself, as it is afer all a cell with the capacity to develop into a human being. A foetus is an embryo which is to be found in the human body (Art. 1 sub. d Embryos Bill). The notion of an embryo is more comprehensive: a foetus is also an embryo. All the development stages of the embryo up until the actual birth fall within the scope of the definition and thereby also under the Embryos Bill. 6.2 Cloning The Embryos Bill lays down the bounderies with respect to cloning. There is a difference between reproductive and therapeutic cloning. Reproductive cloning is the making of genetically identical individuals. From an international point of view there is large-scale agreement as to the unacceptability of this technique.34 The Dutch 31. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 41. 32. In the first place by fertilizing an ovum whereby an ovum and a sperm cell are fused together. This can take place within the human body in vivo, or outside the human body in vitro. Another method is by way of splitting one or more of the embryo s totipotent cells (these are cells which have the possibility independently to grow into a new embryo). It is also possible to create an embryo by making use of cells from an embryonic stem-cell line. A combination is then made of cells which have originated from two different embryos (chimaera). Finally, it is in principle also possible to apply the technique already used in the case of animals: the nucleus of an animal s bodily cell is transplanted into an animal s female gamete with the original nucleus being removed. If this would occur then there is the potential to grow into a person, Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 49. 33. The ovum and the sperm cell will fuse together if, after the successful penetration of the ovum wall by the sperm cell, the cell membranes of the two sex cells fuse. Although immediately after this event two independent cell nuclei can in fact be differentiated, it is the case that there is already an embryo in the sense of the Bill, Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 49. 34. Alongside the Council of Europe (Supplementary Protocol to the Bio-ethics Treaty), international organisations such as the World Health Organisation and UNESCO have made declarations to the effect that the cloning of persons is not admissible as it is contrary to human dignity and is immoral. There is also a European Commission resolution which calls upon Member States to prohibit therapeutic cloning and consumptive embryo research
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCHLAW legislator also considers reproductive cloning to be in conflict with human dignity, although it does wish to leave room for non-reproductive(therapeutic) cloning techniques. With the aid of these techniques(for example, cell transplantation)cells and tissue can be developed which will be of great value for transplantation purposes By means of the interpretative declaration to the Supplementary Protocol on Cloning the Netherlands wished to leave this possibility open. The Embryo Act therefore contains a prohibition on both types of cloning, although the ban on therapeutic cloning will expire after5 years(Art. 24 sub a Embryos Bill). Thereafter, therapeutic cloning will become possible, although subject to strict conditions.35 6.3 Controloverembryos Persons of full age who are legally competent can offer so-called residue embryos 6 for the benefit of a lim ited list of purposes: the pregnancy of another(donation), the ultivation of embryonic cells for those purposes referred to in the bill, and for carrying out medical research(Art. 8 para. I Embryos Bill). This should take phce in writ ing and there should be no payment involved( the non-commercial principle ). If there should be a difference of opinion among those involved (the couple on behalf of whom the embryos have been created)then this procedure will not take place(Art 8 para. 2 Embryos Bill). The donor will have no control over the possible subsequent destination for research purposes, considering the fact that these persons are aware beforehand that this situation can arise and that they could have relinquished this possibility if they had not been in agreement. 37 6.4 Scientific research using in-vitro embryos Embryos Bill regulates scientific research using embryos in vitro as well as in a differentiation should be made between scientific research using residue embryos and embryos especally created for scientific research. The Bio-ethics Treaty determines in its Art. 18 para. I that where the lw allows research on embryos in vitro, it shall ensure adequate protection of the embryo. Scientific research is therefore allowed and the legislator thereby has a broad freedom as regards policy as it has not been exactly determined which fomm of protection should research: the creation of human embryos forresearch purposes is prohibited, ffic e offered. Art. 18 para. 2 forbids the special cultivation of embryos for scientific The Dutch legislator considers that by taking respect for human lif departure, it should in principle be cautious as to the use of embryos for scientific The creation of embryos for the purpose of cultivating embryonic cells will be lmited to situations where transplants can only take place if such cells are cultivated for thi purpose, Art. 9 para. I Embryos Bill These are theembryos whichremain afterIVF treat 37 Parl Docs. 11, 200001, 27423, no 3, P. 53. According Braake it s unjust that the donor These provis ons have given rise t d scuss ons in a ofMember States as t whether or ot thereshould be restrictions attached, Te Braake, 2001, p 52
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 7 legislator also considers reproductive cloning to be in conflict with human dignity, although it does wish to leave room for non-reproductive (therapeutic) cloning techniques. With the aid of these techniques (for example, cell transplantation) cells and tissue can be developed which will be of great value for transplantation purposes. By means of the interpretative declaration to the Supplementary Protocol on Cloning the Netherlands wished to leave this possibility open. The Embryo Act therefore contains a prohibition on both types of cloning, although the ban on therapeutic cloning will expire after 5 years (Art. 24 sub. a Embryos Bill). Thereafter, therapeutic cloning will become possible, although subject to strict conditions.35 6.3 Control over embryos Persons of full age who are legally competent can offer so-called residue embryos36 for the benefit of a limited list of purposes: the pregnancy of another (donation), the cultivation of embryonic cells for those purposes referred to in the Bill, and for carrying out medical research (Art. 8 para. 1 Embryos Bill). This should take place in writing and there should be no payment involved (the non-commercial principle). If there should be a difference of opinion among those involved (the couple on behalf of whom the embryos have been created) then this procedure will not take place (Art. 8 para. 2 Embryos Bill). The donor will have no control over the possible subsequent destination for research purposes, considering the fact that these persons are aware beforehand that this situation can arise and that they could have relinquished this possibility if they had not been in agreement.37 6.4 Scientific research using in-vitro embryos The Embryos Bill regulates scientific research using embryos in vitro as well as in vivo. A differentiation should be made between scientific research using residue embryos and embryos especially created for scientific research. The Bio-ethics Treaty determines in its Art. 18 para. 1 that where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo . Scientific research is therefore allowed and the legislator thereby has a broad freedom as regards policy as it has not been exactly determined which form of protection should be offered. Art. 18 para. 2 forbids the special cultivation of embryos for scientific research: the creation of human embryos for research purposes is prohibited . 38 The Dutch legislator considers that by taking respect for human life as a point of departure, it should in principle be cautious as to the use of embryos for scientific 35. The creation of embryos for the purpose of cultivating embryonic cells will be limited to situations where transplants can only take place if such cells are cultivated for this purpose, Art. 9 para. 1 Embryos Bill. 36. These are the embryos which remain after IVF treatment has taken place. 37. Parl. Docs. II, 2000/01, 27 423, no. 3, p. 53. According to Te Braake it is unjust that the donor has no say in the matter, 2001, p. 34. 38. These provisions have given rise to discussions in a number of Member States as to whether or not there should be restrictions attached, Te Braake, 2001, p. 52
DERCKX/HONDIUS purposes. Scientific research using embryos may only take place if this corresponds to a Research Protocol that has been ratified by a central comm ission established under the Medical Research Act. 9 The most important condition for approval is that It must be reasonably likely that the research will lead to the establishment of new insights in the field of medical science and that such new insights cannot beachieved through forms or methods of scientif ic research other than with research using embryos or through research of a less radical nature(Art. 10 Embryos Bill). The central commission should decide on a case by case basis whether the scientific research, and thereby a violation of the principle ofhuman life, is justified The Embryos Bill contains a ban on scientific research using embryos which have been especally created for this purpose. Considering the fact that the objective of such activ ities is not to create a person, but rather to broaden knowledge, this would mean a greater violation of the respect for human life than when residue embryos would be used for this purpose. It is for this rea son, and because of the reserved societal and intemational views on this point, that the ban has been adopted in the Embryos Bill(Art. 24 sub a). 40 It cannot be excluded, however that within a few years there will be broader support for this specal cultivation of em bryos. The Embryos Bill also anticipates the lifting of this ban and it already regulates the limitations and cond itions for scientific research after the lifting of the prohibition. I In ratify ing the Bio-ethics Treaty the Netherlands will also have to make a reservation Health lawyers, however, do not exclude the specal cultivation of embryos for scientific research. They do not differentiate between protecting the dignity of the em bryo in vivo or in vitro the objective of the creation is irre levant as far as status is concemed. Alongside this, socially it has been completely accepted that additiona embryos are cultivated for I VF purposes whereby it is known for certa in beforehand that they become lost. It may be anticipated that in the long term not only in the Netherlands, but also in other countries, it will be accepted that embryos can be specially cultivated for scientif ic research where the interests of patients are involved One could otherwise ask whether ba lancing the relevant interests is not by definition 9. In regulating scientific research using embryos in vitro the legislator has sought to link this issue with the Medical Research Act(26 February 1998, St. 1998, No. 161). The central commission referred to in the Embryos Bill i the same commas ion as the one which already exst under the Medical Research Act and which decides on research protocols in the field of medical research on human bengs. The legislator is of the opinion that the wide experience and expertise present in the commiss ion would be an added guarantee for careful decision-making Explanatory Memorandum, 2000/01, 27423, no 3, pp. 23-24. The central commiss ion ssues a yearly report by the Minster of Health, Welfare and Sporton the application of the Embryos Bill, whereby attention is namely devoted to new developments concerning activ ities in relation t sex cells and embryos, Art. 4 para I Embryos 40 Explanatory Memorandum Il, 2000/0 1, 27423, no 3, p. 28 Part a of Art 24 will expire after 5 years, Art. 33 para. 2 Embryos Bill. The scientific research should lead to the establishment of new insights in the field of infertility, artifcial reproduction by making use of embryos especially cultivated for this purpose, Art I l Embryos Te Braake 1989, 1998, 2001, Leenen/Gevers, 2000, p 147
DERCKX/HONDIUS 8 purposes. Scientific research using embryos may only take place if this corresponds to a Research Protocol that has been ratified by a central commission established under the Medical Research Act.39 The most important condition for approval is that it must be reasonably likely that the research will lead to the establishment of new insights in the field of medical science and that such new insights cannot be achieved through forms or methods of scientific research other than with research using embryos or through research of a less radical nature (Art. 10 Embryos Bill). The central commission should decide on a case by case basis whether the scientific research, and thereby a violation of the principle of human life, is justified. The Embryos Bill contains a ban on scientific research using embryos which have been especially created for this purpose. Considering the fact that the objective of such activities is not to create a person, but rather to broaden knowledge, this would mean a greater violation of the respect for human life than when residue embryos would be used for this purpose. It is for this reason, and because of the reserved societal and international views on this point, that the ban has been adopted in the Embryos Bill (Art. 24 sub. a).40 It cannot be excluded, however, that within a few years there will be broader support for this special cultivation of embryos. The Embryos Bill also anticipates the lifting of this ban and it already regulates the limitations and conditions for scientific research after the lifting of the prohibition.41 In ratifying the Bio-ethics Treaty the Netherlands will also have to make a reservation. Health lawyers, however, do not exclude the special cultivation of embryos for scientific research.42 They do not differentiate between protecting the dignity of the embryo in vivo or in vitro; the objective of the creation is irrelevant as far as status is concerned. Alongside this, socially it has been completely accepted that additional embryos are cultivated for IVF purposes whereby it is known for certain beforehand that they become lost. It may be anticipated that in the long term not only in the Netherlands, but also in other countries, it will be accepted that embryos can be specially cultivated for scientific research where the interests of patients are involved. One could otherwise ask whether balancing the relevant interests is not by definition 39. In regulating scientific research using embryos in vitro the legislator has sought to link this issue with the Medical Research Act (26 February 1998, Stb. 1998, No. 161). The central commission referred to in the Embryos Bill is the same commission as the one which already exists under the Medical Research Act and which decides on research protocols in the field of medical research on human beings. The legislator is of the opinion that the wide experience and expertise present in the commission would be an added guarantee for careful decision-making, Explanatory Memorandum, 2000/01, 27 423, no. 3, pp. 23-24. The central commission issues a yearly report by the Minister of Health, Welfare and Sport on the application of the Embryos Bill, whereby attention is namely devoted to new developments concerning activities in relation to sex cells and embryos, Art. 4 para. 1 Embryos Bill. 40. Explanatory Memorandum II, 2000/01, 27 423, no. 3, p. 28. 41. Part a of Art. 24 will expire after 5 years, Art. 33 para. 2 Embryos Bill. The scientific research should lead to the establishment of new insights in the field of infertility, artificial reproduction techniques, hereditary congential disorders or transplantation medicine which can only be obtained by making use of embryos especially cultivated for this purpose, Art. 11 Embryos Bill. 42. Te Braake 1989, 1998, 2001, Leenen/Gevers, 2000, p. 147
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCHLAW an arbitrary process. From the perspective of the em bryo it really makes no difference which interest has been chosen 6.5 Scientific research using in-vitro embryos which have been implanted and using foetuses In the case of pre-implantation diagnostics research is carried out on embryos in vitro to discover whether there is the presence of (hereditary) disorders so that only an embryo with no such disorder will be placed(returned) to the uterus. When this concems the health of the future child the requirements are different to the case whereby embryos are lost. +3 Here also the central commission established under the Medical Research Act should approve a research protocol wherein an important criterion is that it is reasonably likely that the interest at stake in the research is proportionally related to the drawbacks and the risks involved for the future child and the woman(Art. 16 Embryos Bill). The woman as well as her husband or partner should give their written consent in this matter(Art. 17 Embryos Bill) Prenatal research is only allowed if it is therapeutic, that is to say if it can prevent serious disorders in the foetus concemed and that it cannot be postponed until after the birth(Art. 20 Embryos Bill). Therapeutic prenatal research is only permissible if the central commission has positively approved a research protocol whereby it must be reasonably likely that the interest involved in the research proportionately related to the drawbacks and the risks involved for the foetus and the pregnant woman in question and such research must be with the written permission of the pregnant woman. 44 Furthermore, the research should lead to the establishment of new insights in the field of medicine concerning unbom or newborn children or in connection with the full course of pregnancies and these objectives cannot be attained by means of other foms or methods of scientif ic research(Art. 19 Embryos Bill). Non-therapeutic research carried out on the foetus(thus research which is only of importance for medical science )is not permitted. 45 Posthumous reproduction/law of succession The Embryos Bill renders posthumous reproduction possible. The main rule is that if the sperm donor or one of the persons involved in the frozen embryos has died, the ise may be, the em bryo will no lor the lifetime of the person concerned a written decaration has been made conceming the use of the spem or embryo in question, then that sperm or embryo may be kept (Art. 7 Embryos Bill). In Australia and the Us(the Rios Case 1984)the question arose whether a frozen em bryo-whereby both prov iders of the gametes had died had succession rights. Under Dutch lw there would be no succession rights, the Explanatory Memorandum, 2000/01, 27423, no 3, P. 37 Strangely enough, not the written perm ission of her husband or parter, who would also have an nterest n the health of the future child, according to Te Braake, 2001. The legislator has made thi choice because of the stress of the research for the pregnant woman and her direct involvement in her pregnancy, Explanatory Memorandum, 2000M01, 27423, no 3, P. 40 45 Explanatory Memorandum, 2000/01, 27423, no 3, P. 39
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 9 an arbitrary process. From the perspective of the embryo it really makes no difference which interest has been chosen. 6.5 Scientific research using in-vitro embryos which have been implanted and using foetuses In the case of pre-implantation diagnostics research is carried out on embryos in vitro to discover whether there is the presence of (hereditary) disorders so that only an embryo with no such disorder will be placed (returned) to the uterus. When this concerns the health of the future child the requirements are different to the case whereby embryos are lost.43 Here also the central commission established under the Medical Research Act should approve a research protocol wherein an important criterion is that it is reasonably likely that the interest at stake in the research is proportionally related to the drawbacks and the risks involved for the future child and the woman (Art. 16 Embryos Bill). The woman as well as her husband or partner should give their written consent in this matter (Art. 17 Embryos Bill). Prenatal research is only allowed if it is therapeutic, that is to say if it can prevent serious disorders in the foetus concerned and that it cannot be postponed until after the birth (Art. 20 Embryos Bill). Therapeutic prenatal research is only permissible if the central commission has positively approved a research protocol whereby it must be reasonably likely that the interest involved in the research is proportionately related to the drawbacks and the risks involved for the foetus and the pregnant woman in question and such research must be with the written permission of the pregnant woman.44 Furthermore, the research should lead to the establishment of new insights in the field of medicine concerning unborn or newborn children or in connection with the full course of pregnancies and these objectives cannot be attained by means of other forms or methods of scientific research (Art. 19 Embryos Bill). Non-therapeutic research carried out on the foetus (thus research which is only of importance for medical science) is not permitted.45 7 Posthumous reproduction/law of succession The Embryos Bill renders posthumous reproduction possible. The main rule is that if the sperm donor or one of the persons involved in the frozen embryos has died, the sperm or, as the case may be, the embryo will no longer be kept. However, if during the lifetime of the person concerned a written declaration has been made concerning the use of the sperm or embryo in question, then that sperm or embryo may be kept (Art. 7 Embryos Bill). In Australia and the US (the Rios Case 1984) the question arose whether a frozen embryo - whereby both providers of the gametes had died had succession rights. Under Dutch law there would be no succession rights, the 43. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 37. 44. Strangely enough, not the written permission of her husband or partner, who would also have an interest in the health of the future child, according to Te Braake, 2001. The legislator has made this choice because of the stress of the research for the pregnant woman and her direct involvement in her pregnancy, Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 40. 45. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 39
DERCKX/HONDIUS legal fiction occurring under Art. 1: 2 of the Dutch Civil Code only being applicable if the woman were pregnant. 46 Conflicts between the embryo and the mother In the literature there has been a great deal of discussion conceming the question of whetherthe mother has legal obligations in relation to the embryo, for example in the case where the mother refuses necessary research on the embryo. Some are of the opinion that an em bryo has it own right to life and a right to be bom hea lthy or believe that the woman, after the termination of the period during which an abortion can be carried out, has given up the right to refuse treatment for the foetus. Those who adhere to this view are of the opinion that there must be a child protection provision during pregnancy.47 The prevailing view in health law, however, is that the law does not provide any legal grounds for infringing the woman s fundamental rights(physical integrity, privacy ). The woman only has moral- not legal bligations. According to Leenen she is a so-called childminder 48 The Embryos Bill does not provide for the appointment of a legal representative for the embryo if the mother does not give permission for research to be camied out on the foetus Abortus provocatus In The Netherlands a woman may temm ina te her pregnancy subject to the conditions la id down in the Term ination of Pregnancy Act. 49 The Term ination of Pregnancy Act does not lay down a maxmum pregnancy temm within which terminations are permitted. A criterion is laid down for this pupose in a crim inal law provision-Art 82a of the Crim inal Code- which determ ines that it is a punishable offence to kill a foetus which has a viable independent existence. The legislator has expressly not set a lim it in the Term ination of Pregnancy Act due to the fact that developing science may be able to further reduce the viability boundary. At the time of the enactment of the Crim inal Code a foetus of less than 24 weeks was not considered to have a viable independent existence. As a limit a maximum of 22 weeks has beenadhered to From the time of viable independent existence the woman loses the authority to have the regnancy teminated. Abortion is not a criminal offence if it is carried out by a doctor in a hospital or in an abortion clinic licensed for this purpose. The necessary criteria for the term ination of a pregnancy are the existence of an emergency situation as far as the woman is concerned and the fact that there has been a period of deliberation 50 The decision as to whether there is a case of an emergency situation will be that of a doctor. a doctor is not obliged to carry out an abortion (an abortion Among others Sluyters, De Bruijn-Luckers. In 2000 there were 8 abortions per 1000 women in the 15-44 age-group n The Netherlands Annual Reportof the Health Care Inspectorate 2000, p 102. The number of abortions I connected to, among other things, the availability of brth control devices Accordng to Leenen/Gevers 2000, p. 161, thesecriteriaseem to exclude one another
DERCKX/HONDIUS 10 legal fiction occurring under Art. 1:2 of the Dutch Civil Code only being applicable if the woman were pregnant.46 8 Conflicts between the embryo and the mother In the literature there has been a great deal of discussion concerning the question of whether the mother has legal obligations in relation to the embryo, for example in the case where the mother refuses necessary research on the embryo. Some are of the opinion that an embryo has it own right to life and a right to be born healthy or believe that the woman, after the termination of the period during which an abortion can be carried out, has given up the right to refuse treatment for the foetus. Those who adhere to this view are of the opinion that there must be a child protection provision during pregnancy.47 The prevailing view in health law, however, is that the law does not provide any legal grounds for infringing the woman s fundamental rights (physical integrity, privacy). The woman only has moral - not legal obligations. According to Leenen she is a so-called childminder . 48 The Embryos Bill does not provide for the appointment of a legal representative for the embryo if the mother does not give permission for research to be carried out on the foetus. 9 Abortus provocatus In The Netherlands a woman may terminate her pregnancy subject to the conditions laid down in the Termination of Pregnancy Act.49 The Termination of Pregnancy Act does not lay down a maximum pregnancy term within which terminations are permitted. A criterion is laid down for this purpose in a criminal law provision - Art. 82a of the Criminal Code - which determines that it is a punishable offence to kill a foetus which has a viable independent existence. The legislator has expressly not set a limit in the Termination of Pregnancy Act due to the fact that developing science may be able to further reduce the viability boundary. At the time of the enactment of the Criminal Code a foetus of less than 24 weeks was not considered to have a viable independent existence. As a limit a maximum of 22 weeks has been adhered to. From the time of viable independent existence the woman loses the authority to have the pregnancy terminated. Abortion is not a criminal offence if it is carried out by a doctor in a hospital or in an abortion clinic licensed for this purpose. The necessary criteria for the termination of a pregnancy are the existence of an emergency situation as far as the woman is concerned and the fact that there has been a period of deliberation.50 The decision as to whether there is a case of an emergency situation will be that of a doctor. A doctor is not obliged to carry out an abortion (an abortion 46. Leenen/Gevers, 2001, p. 132. 47. Among others Sluyters, De Bruijn-Luckers. 48. Leenen/Gevers, 2000, p. 153. 49. In 2000 there were 8 abortions per 1000 women in the 15-44 age-group in The Netherlands, Annual Report of the Health Care Inspectorate 2000, p. 102. The number of abortions is connected to, among other things, the availability of birth control devices. 50. According to Leenen/Gevers 2000, p. 161, these criteria seem to exclude one another
