Federal Public Prosecutor's Office questions restrictions on assisted reproduction.
A federal prosecutor in Goiás has filed a public civil action against the Federal Council of Medicine, arguing that by issuing regulations that "exceed the limits of ethical and professional discipline," the body is exceeding its regulatory power and violating the constitutional right of citizens to freedom of family planning. Resolution 2013 of the CFM establishes, among other limitations, a maximum age for women to undergo procedures and for gamete donation.
MPF-GO_ To declare illegal Resolution No. 2013, of May 9, 2013, of the Federal Council of Medicine (CFM), which regulates the actions of physicians regarding assisted reproduction techniques. With this objective, the Federal Public Prosecutor's Office in Goiás (MPF) filed a public civil action, with a request for preliminary injunction, against the CFM.
According to the Federal Public Prosecutor's Office (MPF), by issuing the resolution, the Federal Council of Medicine (CFM) exceeds the limits of its regulatory power and infringes upon the constitutional right of citizens to freedom of family planning. Resolution 2013/2013 contains four illegal provisions. First, the provision, not directed at doctors but at patients, states that "the maximum age of candidates for pregnancy through assisted reproduction is 50 years." Furthermore, it establishes that "the maximum number of oocytes and embryos to be transferred to the recipient cannot exceed four," setting a tiered limit on the number of embryos to be transferred to recipients according to age criteria. It also defines that "the age limit for gamete donation is 35 years for women and 50 years for men." Finally, it prescribes that "cryopreserved embryos older than five years may be discarded, if this is the wish of the patients, and not only for stem cell research, as provided for in the Biosafety Law (Law No. 11.105/05)".
According to federal prosecutor Ailton Benedito, author of the lawsuit, the provisions contained in CFM Resolution No. 2013/2013 exceed the limits of ethical-professional discipline, particularly because they are directed at citizens who are not practicing medicine. The regulation "has family, social, and reproductive rights repercussions that fall outside the regulatory power of professional oversight councils," explains the prosecutor.
The Federal Public Prosecutor's Office understands that, according to constitutional provisions, the power to legislate on assisted reproduction lies with the National Congress. The absence of a law on the subject does not constitute a legal basis to transfer a political responsibility, that is, a legislative activity, to professional regulatory bodies.
In light of the facts, the Federal Public Prosecutor's Office (MPF) requested that the judiciary recognize the unconstitutionality of CFM Resolution No. 2013/2013, suspend its application throughout the country, and prohibit the CFM from applying ethical-disciplinary sanctions to doctors who allegedly violate the resolution. Furthermore, it requested that the CFM be prohibited from issuing any regulation that exceeds the limits of its regulatory power, particularly regarding assisted reproduction, that the suspension of the resolution be widely publicized through its website and other means of communication, and that a fine of R$100 be imposed for each disciplinary sanction applied.