03. Aug 2023

Biomedically assisted fertilization procedures in Serbia (hereinafter: BMAF procedures) are regulated by the Law on Biomedically Assisted Fertilization (“Official Gazette of RS”, No. 40/2017 and 113/2017 – other Law) (hereinafter: Law on BMAF) which entered into force on 5 May 2017, but also by a series of by-laws that regulate this matter. The mentioned law provides that BMAF procedures can be carried out by using one’s own reproductive material, as well as with donated reproductive material. Although the Law on BMAF has been in force for almost six years, until recently in Serbia it was not possible to carry out BMAF procedures with donated reproductive material, thus spouses and extramarital partners, who did not have success in our country with BMAF procedures by using their own reproductive cells, had to go to other countries in order to try to get offspring with the use of donated reproductive cells. The reasons for this are multiple. Namely, given that no reproductive material was donated in Serbia, the Bank of reproductive cells, tissues, and embryos, which was established at the Clinic for Gynecology and Obstetrics of the Clinical Center of Serbia, did not have available donated reproductive materials needed to perform BMAF procedures in Serbia with donated reproductive cells. However, during 2022 and the beginning of 2023, the Republic of Serbia signed contracts with certain foreign banks of reproductive cells, and as the conditions for the import of reproductive material from foreign banks have been created, it has recently been possible to carry out the BMAF procedures in Serbia with donated reproductive cells, at the expense of mandatory health insurance funds. What is important to point out is that the right to treatment of infertility by BMAF procedures with donated reproductive material, at the expense of mandatory health insurance funds, is recognized, not only for women up to the age of 45 (provided that one of the partners (marital or extramarital) does not have a child) but also for women up to the age of 45 who do not have a partner and do not have a child, with the fulfillment of other legal requirements.

As a reminder, the Law on BMAF stipulates that if it is not possible to use the reproductive cells of one of the spouses or extramarital partners in the BMAF procedure for the reasons stated in Article 29 of the Law on BMAF (if it is not possible to conceive with one’s own reproductive cells, when other BMAF procedures were unsuccessful, as well as if a serious hereditary disease would be transmitted to the child by using one’s own reproductive cells), it is possible to use donated reproductive cells, and for the mentioned procedures the Law on BMAF allows the use of donated reproductive cells only with one spouse or extramarital partner, as well as a woman who lives alone, i.e. does not have a partner, if the mentioned persons also fulfill other legal conditions.

Who can apply for the BMAF procedure?

In accordance with Article 25 of the Law on BMAF, BMAF procedures can be applied for by:

  • Spouses or extramarital partners who need help in the treatment of infertility by BMAF procedures, who are persons of legal age and business ability, who are capable of performing parental duties and are in such a psychosocial state that they can be reasonably expected to be able to perform parental duties, in accordance with the law, in the interest of the child;
  • Woman who is person of legal age and business ability, who lives alone and who is capable to perform parental duties and is in such a psychosocial condition that it can be reasonably expected that she will be capable of performing parental duties, in accordance with the law, in the interest of the child;
  • Woman and man who are persons of legal age and business ability, who have postponed the use of their reproductive cells due to the possibility of reduction or loss of reproductive function, who are marital or extramarital partners, who are capable of performing parental duties and are in such a psychosocial state on the basis of whom it can be reasonably expected that they will be able to perform parental duties, in accordance with the law, in the interest of the child.

The list of institutions with which the Republic Health Insurance Fund has concluded an agreement on the provision of infertility treatment services can be seen on the website of the Republic Health Insurance Fund.

Persons interested in the BMAF procedure, who are insured by the Republic Health Insurance Fund, can exercise the right to infertility treatment at the expense of mandatory health insurance funds, if they meet certain conditions prescribed by the Uputstvom za sprovođenje lečenja neplodnosti postupcima biomedicinski potpomognutog oplođenjawhich was published by the Republic Health Insurance Fund.

Who can be a donor of reproductive cells and embryos?

  • An egg cell donor is a woman whose egg cells are used to fertilize another woman;
  • An egg cell donor is also a woman who participates in the BMAF procedure, from which her surplus of egg cells arose, which she wants to donate;
  • A donor of sperm cells is a man whose sperm cells are used to impregnate a woman who is not his wife, nor extramarital partner.

All previously mentioned donors must be healthy persons of legal age and business ability and must give written consent for donation.

  • Embryo donors are spouses, i.e. extramarital partners who have given up the use of their embryo created for their fertilization

Donors of embryos must give written consent for the use of their embryo in the fertilization of other spouses, i.e. extramarital partners, women without a partner from Article 25 paragraph 2 of the Law on BMAF.

The donor is guaranteed anonymity. Personal data of the donor are collected and stored in accordance with the law governing the protection of personal data.

Although Article 48 of the Law on BMAF stipulates that the Ministry responsible for health affairs promotes the voluntary donation of reproductive cells and embryos, an impression is gained that the general public in our country is not sufficiently informed on the possibilities of donating reproductive cells in Serbia, all with the aim of treating infertility. Considering that through the signing of contracts with certain foreign banks of reproductive cells, our country took important steps towards solving the problem of infertility, it would be of great importance if in the coming period more attention was paid to promoting the donation of reproductive material in our country. All the above would greatly facilitate  BMAF procedures with donated reproductive material, considering that the procedure of obtaining reproductive material would be accelerated and the procedure would be significantly cheaper.

Finally, BMAF procedures produce legal consequences and raise various legal issues. The key question that arises is who, in the case of BMAF procedures, will be considered the mother or father of a child born with the help of the BMPO procedures. The Family Law of the Republic of Serbia (“Official Gazette of RS”, No. 18/2005, 72/2011 – other. Law and 6/2015) (hereinafter: Family Law) in its Articles 57 and 58 stipulates that the mother of a child conceived with biomedical assistance is considered to be the woman who gave birth to the child, while the father of a child conceived with biomedical assistance is considered to be the mother’s husband or extramarital partner, provided that he has given written consent for the implementation of biomedically assisted fertilization. In addition to the above, in procedures in which conception occurred with the help of donated reproductive material, the question arises as to whether it is possible to determine the paternity or maternity of the person who donated the reproductive material? The answer to the aforementioned question can be found in Articles 57 and 58 of the Family Law, which explicitly prohibit the determination of maternity and paternity of persons who have donated reproductive material.Although BMAF procedures with donated reproductive material have recently started to be implemented in our country, the Law on BMAF and regulations adopted on the basis of the said law laid the basis for the regulation of this issue, but the effectiveness of the implementation of the law and enabling the realization of the right to infertility treatment with BMAF procedures with donated reproductive material to the persons who have the right to apply for the mentioned procedures will depend on the work of the competent institutions.