Nedescu v. Romania

Application No. 70035/10
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The applicants are husband and wife and wanted to try assisted reproduction at a private clinic. The applicant’s embryos were obtained and freezed for future use by the applicant. A criminal investigation led to the closure of the said clinic. During that process, all genetic material including the applicant’s embryos were transferred to a forensic medicine institute by the prosecutor’s office. Embryos of around 240 families had been seized and the families were neither informed of the seizure not consulted about the transfer of the embryos from the clinic to the forensic medicine institute. The applicants requested the authorities to allow them the retrieval of the embryos. The request was allowed by the Prosecutor’s office stating that they had to be accompanied by an embryologist. The Institute of Forensic Medicine (IFM) did not allow the applicants to retrieve the embryo.

The applicant attempted to have a new ovarian stimulation thereafter but her state of health did not allow her to undergo another such stimulation.

Thereafter the applicant joined criminal proceedings against the private clinic and sought damages under tort law. The applicant’s claim was dismissed due to lack of victim status stating that the IFM’s refusal to let them retrieve the embryo had nothing to do with the alleged crimes the clinic was committing.

The applicants’ efforts of retrieving the embryos were unsuccessful and so were the attempts of an ovarian stimulation. The Applicants appealed to the Court of Appeal against The Transplant Agency and the Ministry of Health for authorisation to receive the embryos. The Transplant Agency it did not approve the transfer of embryos as the embryos were moved to the IFM unlawfully. The Court of Appeal dismissed their application for transfer of embryos relying on the Transplant Agency’s decision.

The applicants appealed to the High Court. The Prosecutor’s office appointed a public hospital to be the new custodian of the embryos. The duty doctor had mentioned in the transfer report that the transfer had been done without any prior checks and absence of the embryologist.

The High Court allowed the appeal of the applicants and ordered the Transplant Agency to implement the prosecutor’s order to return the embryos. It found that the Transplant Agency had been duly informed of the seizure of embryos and genetic material in the first instance and the Ministry of Health had also signed the record drawn up at the end of the procedure of transfer. The applicants contacted the new public hospital on the basis of information given to them by the prosecutor’s office. The hospital informed them that they had to be accompanied by a representative from the Transplant Agency. Further, on a later date they were informed that they had to obtain an authorization document from the Agency, have an embryologist present and provide a liquid nitrogen container for the transfer and then subsequently informed that a representative from the Prosecutor’s office would have to be present too. They further declined to have any responsibility for identification, quality and viability of the embryos. The applicants applied to the Prosecutor’s office to be the custodians of their embryos. The application was rejected. The criminal investigation found the managers of the private clinic and the then director of the Transplant Agency guilty of creating a criminal group.

The Applicants alleged that the authorities’ actions had amounted to interference in their private lives. They had not been allowed to use their embryos for more than six years and thus their wish to have another child had remained unfulfilled and now impossible.

The Court held that there had been a violation of Article 8 of the Convention. The Court stated that the current custodian of the embryos itself had mentioned in its report stating that the condition and circumstances in which the embryos were handled and transferred rendered it impossible to identify with certainty which embryo belonged to the applicant. The Court further stated that the implementation of the relevant legal provisions in respect of seizure, storage, transfer and return of embryos interfered with the rights of the applicants and prevented them from having another child.

The Court notes in particular that following the seizure of their embryos and their being deposited with the IFM, the applicants attempted on numerous occasions to recover them, but failed each time. On 21 July 2010 the IFM, where the embryos had been deposited first of all, refused to allow the applicants to retrieve them (see paragraph 14 above). On 13 December 2010 the Transplant Agency notified the applicants of its refusal to allow recovery of the embryos (paragraph 21above). On 22 March 2011 the Bucharest Court of Appeal refused to allow the recovery of the embryos by way of their transfer to a clinic of the applicants’ choice (paragraph 23 above). Finally, P.S. Hospital, the new custodian appointed on 26 March 2011, refused to allow the retrieval ordered by DIICOT, which would have implemented the High Court of Cassation’s decision of 20 December 2011 (see paragraph 26 above), as it on each occasion set different conditions for such a retrieval and for a transfer to Mrs Nedescu. On 27 September 2012 the condition set by the hospital was the presence of a representative from the Transplant Agency and of the embryologist from S. Clinic; on 1 November 2012 the hospital said it required an authorisation document from the Transplant Agency and the presence of a certified embryologist and a special container; on 12 November 2012 it told the applicants that it refused to transfer the embryos to Mrs Nedescu; and on 7 January 2013 it informed the Government that the embryos could only be retrieved if the Transplant Agency gave its prior approval and it also required the presence of an embryologist from the S. Clinic and a DIICOT representative (see paragraphs 26-29 above). (Para 73)

In the light of the above, the Court finds that the manner in which the judicial and administrative authorities involved implemented and interpreted the relevant legal provisions concerning the seizure, the storage following such a seizure and the return of the applicants’ embryos was incoherent and thus lacked the required foreseeability.” (Para 84)

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