Council changes assisted reproduction rules and removes mention of transgender people

After criticism from sectoral entities, the CFM (Federal Council of Medicine) again modified the regulations regarding assisted reproduction in Brazil. In the new rules, the entity suppresses the explicit citation of transgender people.

The new resolution was published this Tuesday (20) in the Official Gazette.

The CFM had published, in June of last year, the new norms on assisted reproduction, which had repealed the 2017 rules.

Soon after the publication last year, entities in the sector were critical of the changes. Two were the main objects of dispute: the limitation on the number of embryos generated and the need for authorization for the disposal of unused embryos. Both points have been changed.

“I am happy that the Federal Council has become aware and returned to points that would make it even more expensive and make it difficult for several families to access family planning”, says Henderson Fürst de Oliveira, president of the OAB/SP bioethics and biolaw commission.

Previous CFM regulations indicated that the number of embryos generated in the assisted reproduction process could not be greater than eight. The sectoral associations claimed that this could reduce the chances of success of the process.

In cases of failure with these eight embryos, due to the possible need for new rounds of material collection, reproduction would still be more expensive for families. This could even make the process impossible, in addition to increasing the physical and emotional exhaustion involved in the procedure, says Oliveira.

The new regulation also eliminates the need for judicial authorization for the disposal of embryos. The previous rule indicated that embryos cryopreserved for three years or more, at the patients’ will or due to abandonment, could be discarded only with judicial consent.

“The legal system itself never demanded that there be judicial authorization for disposal. The entire policy of the Judiciary is to de-judicialize social relations. This action never made sense”, says the president of the bioethics and biolaw commission.

Finally, the absence of an explicit mention of transgender people can make access to reproduction a little more difficult for this population, according to the expert.

In the previous resolution, there was an excerpt that mentioned that assisted reproduction techniques could be used by heterosexuals, homosexuals and transgender people. That point has been removed.

The mention of transgender people appeared in 2020 in the resolution on assisted reproduction, in a specific change to the rules instituted in 2017, in which there was only mention of “homo-affective relationships and single people” – which had only entered the rule in 2013 (the first resolution on the topic is from 1992).

According to the justification for the 2020 update, then-rapporteur José Hiran Gallo stated that the standard, as it was before, could lead to divergent interpretations.

“The rule could give rise to contradictory interpretations, with the literal adoption of the text, excluding – for example – married or heterosexual people, as well as other categories not expressed there, such as transgender”, wrote the then rapporteur.

“The resolution is now silent on this”, says Oliveira. “That doesn’t mean there’s a restriction, it just doesn’t make it explicit, to make it clear that anyone, no matter their gender identity, or their sexual identification, can have access. When it was explicit, it was better.”

According to Oliveira, even if there is an implicit authorization, some patients may end up facing difficulties in obtaining the procedure, considering that this is a minority population that is still socially discriminated against.

“This also tells us something. When you have something explicit and you choose to remove it from the text, it is also an option to please social segments of a more conservative nature regarding the appropriate family model”, says the president of the bioethics and biolaw commission. from OAB/SP.

This opinion is shared by Bruno Tasso, a lawyer specializing in medical, dental and health law. He says the absence of the term transgender is worrisome because it can set a precedent for a doctor to refuse to perform the procedure.

“In the doctor-patient relationship, there is something called conscientious objection, that is, the doctor can refuse to perform a treatment or procedure if the patient is not in an urgent or emergency situation. somehow make it possible for a doctor to say: ‘Look, it’s not mentioned, I’m not going to do it’. In fact, it will depend a lot on the doctor”, says Tasso.

“It may be that the CFM acted in this way, thinking it would not be a problem, but, depending on the doctor, he may not do it if he does not have the resolution”, he adds.

The lawyer says that there are many cases of assisted human reproduction in homosexual couples, a market that is on the rise, but that in the transgender public the situation is more sensitive.

“Transgender is something that is still being debated. From the moment you take this possibility out of transgender, it may be that, eventually, this public will face prejudice”, concludes Tasso.

In the presentation on the motivations for the latest changes, the rapporteur Ricardo Scandian de Melo states that the revision of the norms was carried out by the Technical Chamber of Assisted Reproduction of the council together with representatives of SBRA (Brazilian Association of Assisted Reproduction), Febrasgo (Brazilian Federation of of Gynecology and Obstetrics) and the SBRH (Brazilian Society of Human Reproduction).