Article Portugal: New Law Allows Medically Assisted Procreation Through Postmortem Insemination

On November 12, 2021, Law No. 72/2021 (Lei No. 72/2021, de 12 de novembro) was published in Portugal’s Official Gazette of the Republic. Law No. 72/2021 amended Law No. 32 of July 26, 2006 (Lei No. 32/2006, de 26 de julho) to permit the use of medically assisted procreation through insemination after the death of a husband or partner (unido de facto) in cases in which express consent has been provided. The law entered into force the day after its publication.

Postmortem Insemination and Consent

Law No. 72/2021 amended Law No. 32/2006 to allow postmortem procedures and outline the process for documenting sperm donors’ consent for the procedure. Postmortem insemination and postmortem embryo transfers, using the sperm of a deceased husband or partner, are lawful in cases with clearly established consent. (Law No. 32/2006, art. 22(1).) These procedures can be used to inseminate a woman whose husband or partner has donated sperm and subsequently dies during the period in which the sperm is being preserved. (Law No. 32/2006, art. 22(2).) The donor must provide either written or recorded consent after being informed of the legal consequences regarding postmortem insemination. (Art. 22-A(1).) In the absence of the abovementioned documentation, the physician who oversees the process can provide a declaration confirming the existence of consent. (Law No. 72/2021, art. 5(2)(a).) If the donor dies during the established sperm preservation period without having provided his consent for postmortem insemination, the collected sperm is destroyed. (Law No. 32/2006, art. 22(3).)

Postmortem insemination or postmortem embryo transfers are punishable by imprisonment for up to two years or a fine penalty of 240 days if done without the donor’s consent and for personal gain or to harm someone. (Article 42-A.) In Portugal, laws can use fine penalties that require violators to pay a daily fine of 1–500 euros (about US$1.15–$565) for a determined number of days.

Requirements for the Postmortem Insemination Procedure

In addition to established consent, the donor’s wife or partner who wants to undergo postmortem insemination must take a period of at least six months to properly consider this decision. (Art. 22(1, 4).) Exceptions are possible for serious clinical reasons duly attested by the physician overseeing the procedure. (Art. 22(4).) Postmortem insemination procedures should begin no later than three years from the death of the husband or partner. (Art. 22(5).) Also, women will have the right to a maximum of three artificial inseminations, which is the same limit established for public centers for medically assisted procreation. (Art. 22(5).)

Postmortem insemination or postmortem embryo implantations can be performed only to bring about a single pregnancy resulting in a full and live birth. (Art. 22(6).) To those who request it, psychological support must be provided as part of the process to decide whether to carry out a postmortem insemination, as well as during and after the procedure. (Art. 22(7).)

Children Born from Postmortem Insemination

Law No. 72/2021 also amended article 23 of Law No. 32/2006, which addresses issues related to paternity. If postmortem insemination is performed in accordance with the abovementioned provisions, the child born from the resulting pregnancy of the inseminated woman is considered the child of the deceased. (Art. 23(1).)

Law No. 72/2021 also amended article 2033(1) of the Civil Code (Código Civil, Decreto-Lei No. 47344/66, de 25 de novembro) to include children born from postmortem insemination in inheritances. Article 2033(1) now dictates that, “[i]n addition to the State, all persons born or conceived at the time of the opening of the inheritance who are not excepted by law, as well as persons conceived, under the terms of the law, within the framework of a postmortem insemination procedure, have the capacity to inherit.” Moreover, article 2046(2) states that “[i]f there is consent for the possibility of postmortem insemination, under the terms of the law, the inheritance of the deceased parent remains available for a period of three years after his death, which is extended until the full birth and life of the unborn child, if the completion of insemination procedures allowed under the law is pending.”

Prepared by Elizabeth Marin, Law Library intern, under the supervision of Eduardo Soares, Senior Foreign Law Specialist

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Portugal: New Law Allows Medically Assisted Procreation Through Postmortem Insemination. 2021. Web Page. https://www.loc.gov/item/global-legal-monitor/2021-12-13/portugal-new-law-allows-medically-assisted-procreation-through-postmortem-insemination/.

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(2021) Portugal: New Law Allows Medically Assisted Procreation Through Postmortem Insemination. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2021-12-13/portugal-new-law-allows-medically-assisted-procreation-through-postmortem-insemination/.

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Portugal: New Law Allows Medically Assisted Procreation Through Postmortem Insemination. 2021. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2021-12-13/portugal-new-law-allows-medically-assisted-procreation-through-postmortem-insemination/>.