This master thesis concerns the issue of artificial reproductive technologies encompassed in the Infertility Treatment and Procedures of Biomedically-Assisted Procreation Act, and its compliance with Slovenian Constitution. Namely, according to the mentioned Act, only spouses and extramarital couples are entitled to procedures of biomedically-assisted procreation. Single persons and same-sex couples are altogether excluded from accessing these proceedings, which raises a question of whether such an arrangement inadmissibly infringes the right to non-discriminatory treatment in conjunction with the freedom to decide on the birth of children, encompassed in Article 55 of Slovenian Constitution.
The constitutionality of the current regulation is argued mainly by the reference to the medical nature of ART procedures and the justification of the use of these procedures only in cases where a medical indication is given. For these reasons, it is necessary to assess whether the medical indication of infertility can constitute a distinguishing criterion justifying the different treatment of heterosexual couples on the one hand and single women and women in same-sex partnerships on the other and whether the positions of these groups are significantly similar in terms of the existence of a medical indication. As the purpose of ART procedures is to assist in the conception and birth of a child, the assessment of the regulation in question must also focus on the principle of protection of the best interests of the child. The pursuit of the best interests of the child, as a fundamental principle of all activities related to children, may justify an interference with other fundamental human rights, including the right to freely decide on the birth of children.
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