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Article Brazil: New Rules Approved for Assisted Reproduction

(Nov. 20, 2017) The Brazilian Federal Council of Medicine (Conselho Federal de Medicina, CFM) approved on November 9, 2017, Resolution No. 2.168, which updates the rules for the use of assisted reproduction techniques. (Resolução CFM No. 2.168/2017, DIÁRIO OFICIAL DA UNIÃO [OFFICIAL GAZETTE OF THE UNION] 73 (Nov. 10, 2017), CFM website; Reprodução Assistida: CFM Anuncia Novas Regras para Uso de Técnicas de Fertilização e Inseminação no País [Assisted Reproduction: CFM Announces New Rules for the use of Fertilization and Insemination Techniques in the Country], CFM website (Nov. 9, 2017).)

Freezing, Surrogacy, and Shared Gestation

The Resolution allows people with no diagnosed reproductive problems to take advantage of assisted reproduction techniques such as the freezing of gametes, embryos, and germinal tissue (tecidos geminativos).  This benefit also extends to patients who, due to certain medical treatments or the development of disease, may  become infertile. (Resolução CFM No. 2.168/2017, art. I (2).)

The Resolution extends permission to relatives in a descending degree of kinship to the woman concerned to temporarily lend their uterus to her.  Before the issuance of the Resolution, only the mother, grandmother, sister, aunt, or cousin of the woman concerned could be a surrogate mother (processo de gestação de substituição).  Now, daughters and nieces can also temporarily offer their wombs, andsingle persons also now have the right to use a surrogate mother.  (Id. arts VII (1), II (2).) 

The Resolution defines the concept of shared gestation, an option already permitted in cases of female same-sex unions.  According to the Resolution, the cases that fall into this situation are those in which an embryo obtained from the fertilization of a woman’s oocyte(s) is transferred to the uterus of her partner, even though there is no diagnosis of infertility involved. (Id. art. II (3).)

Discarding of Embryos

Under the Resolution, the minimum period for discarding an embryo created through assisted reproduction is reduced from five years to three.  The new criterion applies both to cases of patients’ express wishes and to situations of abandonment, characterized by non-compliance with a pre-established contract signed by patients with assisted reproduction services. (Id. art. V (4).)

Donation of Gametes and Embryos

The Resolution opens to women the option to voluntarily donate gametes, an option that was already open to men. The Resolution reaffirms that the maximum age for participation as a donor in any assisted reproduction process will be 35 years for women and 50 years for men.  Exceptions to the age requirement must be justified by the attending physician, who must support his or her decision and also prove that the person concerned is aware of the risks involved. (Id. art. IV (3).)

The Resolution further reaffirms that the maximum number of embryos that may be transferred is four, and that the number may be less according to the patient’s age: up to 35 years, a maximum of two embryos; between 36 and 39 years, up to three embryos; and 40 years or older, a limit of four embryos.  (Id. art. I (7). )

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