O destino dos embriões excedentes da fertilização in vitro e a dissolução da sociedade conjugal

Abstract

In vitro fertilization (IVF), a medically assisted human reproduction technique used worldwide as a solution to the inability to procreate, presupposes an over-stimulation of ovulation by the application of hormones to the patient. This causes embryos to be generated in a number greater than that which will initially be transferred to the woman's uterus, resulting in the so-called surplus embryos, which must remain cryopreserved for later implantation. However, in some cases, it may occur that the couple who performed the procedure, and still have frozen surplus embryos, divorce. Therefore, the present study seeks to verify the destination of these embryos in cases of dissolution of the conjugal society, analyzing the possibility of one of the ex-spouses judicially requesting the custody of the embryos for implantation, without the consent of the other, which must prevail: the right of one party to maternity / paternity or the right of the other to have their genetic material preserved, when they no longer wish to have children. For this, the issue of sterility and infertility as dysfunctions of the human body is initially addressed. Then, the history of the emergence of the techniques of assisted human reproduction is presented, going deeper in the analysis of the procedure of the in vitro fertilization, in order to also address the cryopreservation technique of the embryos and the consent term that must be signed by the couple at that time. Next, the legal aspects of IVF are analyzed, with a focus on the issue of the destination of surplus embryos in case of divorce of the couple of parents. Finally, cases are reported in the international territory, in order to verify how the Brazilian legal system regulates this issue and how these cases would be judged if they occurred in Brazil. For this purpose, bibliographical research, international jurisprudence, is used, as there are not yet concrete cases occurring in Brazilian territory, besides the analysis of the rules of the order that approach the present theme.