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. 130THE 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