CRIME or PUNISHMENT: Penal or Administrative Sanction Concerning Medical Liability in Medically Assisted Reproduction Techniques in the Iberian Context

Abstract

The existing Portuguese and Spanish laws on medically assisted reproduction are in general not much different, but this study shows they go completely different ways with respect to medical liability and sanctions for the physicians or medical teams that perform them against these laws in Portugal and Spain. Our study describes both legislative solutions in terms of legal sanctions for medical wrongful actions in this matter. This is a comparative study between the Iberian laws on medically assisted reproduction – Law 14/2006, in Spain, and Law 32/2006, in Portugal – which analyses based on these 2 punitive approaches the solutions for medical liability justice in medically assisted reproduction techniques in the Iberian context.In our study, we show both legal solutions from a critic and constructive point of view, through a comparative analysis of the texts of the laws in question, showing that the Portuguese law on criminal and penal justice concerning wrongful medical conduct is very different from the Spanish administrative system sanctioning wrongful actions as regards medical liability in medically assisted reproduction techniques. We therefore conclude that in order for these systems of reproductive human rights in health to be protected and growth together in the future (as we suggest), the Spanish approach, which is more open and does not apply criminal sanctions to wrongful medical conducts at once, but rather first applies administrative sanctions to medical professionals and hospitals that perform them outside of the law, should indeed, in this field, influence more profoundly the Portuguese system. The latter has a more conservative approach that, in our opinion, should be similar to the Spanish one, because there really is not a scientific reason for handling medical conduct in Portugal and in Spain differently. In the former, the same conduct could easily constitute a criminal offence and imply imprisonment for the Portuguese physician, while in Spain the same conduct is only subject to a fine and administrative legal action. In conclusion, the criminalization of medical liability, in general, and in terms of medically assisted reproduction, in particular, does not help protect human and reproductive rights in health care.

Keywords: Medically Assisted Reproduction Techniques Liability, Comparative Iberian Medical Law, Penal Justice, Administrative Justice, Human Rights.

DOI: 10.7176/RHSS/11-11-04

Publication date:June 30^th 2021