One of the Partner Lawyers of MGC Legal, Ozgun ONAL, and one of the Senior Lawyers, Busra ERMAN, and their team wrote the article titled "What is In Vitro Fertilization (IVF?)", published on our website; in the article, the Legal Extend of IVF in Turkey, were examined in detail, and the various questions were answered. Here are the details...
What Are The Legal Aspects of In Vitro Fertilization (IVF) in Turkey?
Fertilization in The Tube (In Vitro Fertilization, AKA IVF) is a general term covering various procedures developed against certain types of infertility circumstances. It is a method that is used in cases where the male sperm count is severely insufficient, in chronic female tube diseases or when they are blocked, in some diseases of the female reproductive organ, and in unexplained cases.1
What Are The Regulations on In Vitro Fertilization in Turkey?
The "Regulation on Assisted Reproductive Treatment Practices and Assisted Reproductive Treatment Centers", published in the Official Gazette on 30/09/2014, constitutes the primary legal legislation of the in vitro fertilization process in Turkey.
Regarding the medical treatment practices defined as assisted reproductive treatment methods that express the transfer of gametes or embryos to the womb of the expectant mother by making the egg of the mother-to-be and the sperm of the husband more suitable for fertilization by various methods, enabling them to be fertilized in a laboratory environment outside the human body when necessary; is legislated under Turkish Civil Code No. 4721, Turkish Penal Code No. 5237, Law No. 2238 on Removal, Storage, Vaccination and Transplantation of Organs and Tissues, Convention on the Protection of Human Rights and Dignity in terms of the Application of Biology and Medicine (Human Rights Biomedicine Convention) and "Regulation on Assisted Reproductive Treatment Centers" issued and put into effect by the Ministry of Health are the regulations in force in this regard.2
Where Can In Vitro Fertilization Centers Be Established?
These centers are established by public institutions and organizations, as well as legal persons and private legal entities, in the form of a unit within the framework of general and private hospitals belonging to them or separately for the purpose of providing treatment that helps reproduction.
- The centers are established in the form of units in hospitals with an obstetrics and gynecology specialty and adult and newborn intensive care. This unit cannot be created in a separate place outside the hospital service building or campus. More than one center cannot be built within the hospital.
- Centers can be established within hospitals and private hospitals affiliated with public institutions and organizations; an independent center cannot be established.
- The centers to be opened within the private hospital are first included in the project, which is the basis for the license within the scope of the Private Hospitals Regulation published in the Official Gazette dated 27/3/2002 and numbered 24708. Following the approval of the project and planning, the procedures are continued.
- For the centers to be established within the public hospital, necessary permissions are obtained in accordance with the relevant legislation of the institutions.
- Licenses are issued for detached centers; other centers are recorded in the hospital or medical center's license and/or operating permit.
What Are The Requirements For In Vitro Fertilization?
- First of all, marriage is a legal obligation. Unmarried people cannot have children with in vitro fertilization method in Turkey. However, there is no criminal liability for transplants performed abroad and births in Turkey.
- Spouses should be unable to have children by normal means. Namely, the inability of the spouses to have children due to their distance from them is not included in this scope, and inability should occur as a result of sexual intercourse. Obstetricians can document this issue.
- Before being entered into the in vitro fertilization process, it is necessary to be informed by the relevant doctors. At the same time, it is mandatory to obtain the spouses' consent.
- It is mandatory to use the spouses' genomes when performing the treatment. It is forbidden to receive a genome in the form of a donation from a third party.
- There is no age limit as the upper limit for this treatment. However, there is only a share of support provided by Social Security Insurance (SGK) until the age of 40 in this process.
Which Doctors Can Perform In Vitro Fertilization Treatment in Turkey?
Only gynecologists can perform IVF treatment. This treatment can be done with a certificate given by obstetricians after six months of training by the Ministry of Health. The validity period of this certificate is five years.
What is The Characteristic of The Legal Relationship Between The Patients and The Treatment Centers That Help Reproduction?
The contract between the Treatment center and the patient is the proxy agreement that is governed by the second paragraph of Article 506 of the Turkish Code of Obligations regarding the liability of treatment centers to act with loyalty and care during diagnosis and treatment.3
In terms of the proxy agreement, the duty of care is the "agent's initiatives and behaviors according to general life experiences and regular flow of business expectancies to be resulted successfully in the target and avoiding behaviors that inhibit success.4
What is The Doctor's Responsibility in The Relationship Between The Patient and Doctor in The Treatment of IVF?
The relationship between the patient and the doctor is a proxy contract, and the doctor has a duty of care (Code of Obligations 386-390, 502-506).
Although the proxy holder is not responsible for not achieving the intended result while performing the duty, however; they are accountable for efforts, works, and actions that are done, lack of diligence, and the damages resulting from those behaviors. A professional proxy holder has to act with care and is responsible for even the slightest fault (Art. Code of Obligations 321/1, 400).
For this reason, all the faults of the doctor and the hospital within the professional field should be accepted as an element of responsibility, even if it is slight. In order for the patient not to be harmed, the doctor has to fulfill all professional requirements, determine the patient's medical condition promptly and without delay, take the precautions required by the current case, and determine and apply the appropriate treatment again without delay.
In cases where there is even a minimum level of hesitation, this person must carry out research to eliminate this hesitation and take protective measures. While selecting various treatment methods, it is necessary to consider the patient's characteristics and the disease, avoid attitudes and behaviors that will put the patient at risk, and choose the safest way.
Indeed, the patient has the right to expect meticulous care and attention from a professional at all stages of treatment. The proxy holder who does not show meticulous care should be deemed not to have performed accordingly to the duty of care under the provisions of Article 394/1 of the Code of Obligations (Art. 510). The same considerations are valid for health institutions where the doctor works as an employee.
What is The Liability Relationship Between The Doctor and In Vitro Fertilization Center (Hospital)?
This section examines the doctor's and IVF center's responsibility for IVF treatment.
Since there is no contractual relationship between the hospital, the doctor, and the patient, if the doctor is in charge of a public hospital, the patient may not sue the doctor or other medical staff directly (unless they are personally at fault). Still, they may sue the relevant public institution for a service defect because there is no contractual relationship between the hospital, the doctor, and the patient.
Liability for damages arising from medical interventions in public hospitals should be determined according to the principles of public law, not the rules of private law. In public hospitals, there is not a contractual relationship but an administrative law relationship.5
In a decision of the Court of Cassation, it is stated that for the wrongful medical practices in public hospitals, the lawsuit should be filed against the administration, as follows; "Even if so, the case should be filed against the administration, and the enmity should be directed to the administration. It is against the procedure and the law to examine the case's merits by considering the aspects explained by the local court and not considering that the case against the defendant doctor should be rejected due to the absence of hostility."
With this decision, it was emphasized that there is no contractual relationship between the patient and the doctor; on the contrary, there is an administrative law relationship between the patient and the hospital, and therefore the enmity should be directed to the administration, not directly to the doctor.6
When the patient applies to a private hospital for treatment, a contractual relationship arises between the parties. This contractual relationship is not established between the patient and the doctor. The contractual relationship is established between the private hospital and the patient. The doctor does not take place as a party in the contract. Therefore, in a situation that requires responsibility towards the patient, the physician cannot be held responsible for a breach of contract.
In this case, the doctor will be responsible for the provisions of tortious acts in Article 49 of the Turkish Code of Obligations. Because in this case, there is not a contractual relationship between the patient and the doctor, but a tort relationship. There is a contractual relationship between the patient and the hospital, and the contract's nature will differ from case to case.
Moreover, the private hospital holds the liability of the doctor in charge towards the patient according to Article 116 of the Turkish Code of Obligations, which regulates liability for the actions of assisting persons.7
If the patient directly applied to the doctor for health care, the relationship between them is based on the proxy agreement, according to the Court of Cassation. According to Turkish Code of Obligations Articles 501/1 and 502/2, the regulations related to a proxy relationship may also be applied to the extent they comply with the employment contracts not regulated in the Code of Obligations. The contract concluded with the doctor is such an agreement that the regulations of the proxy agreement will be applied.
The main reason for the contract between the patient and the doctor to be a proxy agreement but not an employment contract is that proxy holders have broader freedom of movement than employees.8
There is no subordinate-superior relationship in the proxy agreement and no dependence on the employer, as in the service contract. The most important element that stands out when the contract is called a proxy is the proxy holder must see the work carefully.
Moreover, while employment and service contracts are made for a period, the proxy agreement does not have a period as a rule. According to the Court of Cassation 13th Civil Chamber's precedent with 2014/17432 case number and 2015/8358 decision number, it has emphasized that in the relationship between the patient and doctor, the doctor is liable for the damages according to a proxy agreement for the effort, procedures, actions, and behaviors have done rather than the result that has not achieved.
The liability of the proxy holder depends on the rules for the employee's responsibility in general. The proxy holder is obliged to behave diligently, like an employee, and is responsible for even the slightest defect. Then again, The Court of Cassation has some various precedents that the relationship between the doctor and patient is a proxy agreement.9
What is The Doctor's Responsibility as a Result of Accidental Fertilization of Another Patient's Egg or Sperm While Performing a Reproductive Intervention?
According to the additional article numbered 17(3) of the "Regulation on Assisted Reproductive Treatment Practices and Assisted Reproductive Treatment Centers", it is clearly regulated that married couples are prohibited from using eggs and sperm belonging to someone else, and acting in violation of this prohibition means a breach of the contract. In order to talk about the doctors' and the center's responsibility, there should also be a defect in addition to a breach of contract.10
According to the standards and experiences of medical science, any medical intervention that lacks due care is essentially a breach of obligation. The court will evaluate with the help of an expert whether the duty of care has been violated or not. The Court of Cassation considers the violation of the obligation of medical care as a violation of the obligation (Court of Cassation 13. Civil Chamber, 08.07.2005 Date, Case Number: 2005/3645, Decision Number: 2005/11796).
The doctor will be responsible for the damage caused by not showing the necessary care due to accidental fertilization of another patient's egg or sperm while performing the reproductive intervention and for the child who won't be born as a child of the biological mother or father. It will be concluded that the physician, who does not comply with the requirements of the artificial insemination method applied to his patient, does not fulfil their duty properly and that the contract is breached.11
Does SSI (SGK) Provide Support For Patients in IVF Treatment Method in Turkey?
If a married woman who has general health insurance does not have children in her current marriage, regardless of whether she has children from a previous marriage or through adoption, or if the insurance holder is a man, the treatment is limited to a maximum of three attempts and is covered by the institution under the following restrictions:
- After the medical treatments, a health board report will be issued stating that she could not have a child with normal medical methods and could only have a child with assisted reproduction method(s),
- Must be over 23 years old, less than 40 years old,
- Must be in a center that has a contract with the institution,
- Must have general health insurance for about five years or be a dependent person,
- If her spouse meets the necessary conditions,
- Documentation of the failure to obtain results from other treatment methods in the last three years by the health service provider health committees contracted with the institution,
- If the number of days for which the general health insurance premium is paid for 900 days or if the woman who is still a general health insurance holder does not meet the conditions in this paragraph.
1. Adashi EY, Rock JA, Rosenwaks Z. Reproductive Endocrinology Surgery and Technology. Raven Press, 1995: p. 235-7.
2. Hulya Deniz YILDIRIM, "Uremeye Yardımcı Tedavide Ucuncu Kisiden Ureme Hucresi alinmasi, Yaklasimlar ve Hukuksal Sorunlar".
3. Ozdemir H., Legal Responsibility of Reproductive Centers For In Vitro Fertilization (in Turkish). Law, Economy, Political Sciences Monthly Internet Journal 2013; Feb(130):16.
4. Tandogan H., Debt Law, Special Debt Relations (in Turkish). C.II, Ankara 1987: 410.
5. Hakan Hakeri, Medical Law, 7th Edition, Ankara, 2013, s. 601.
6. The Decision of the General Assembly of the Supreme Court of Appeals dated 2013/4-579 E. 2014/155 K. 26.02.2014.
8. Hakeri, a.g.e. ,s. 338.
9. The Jurisprudence of The 13th Civil Chamber of the Court of Cassation No. 2014/10131 and 2014/34506 K. and The Case-law of The 13th Civil Chamber of the Court of Cassation No. 2014/17432 E. and 2015/8358 K., (www.emsal.yargıtay.uyap.gov.tr), (Access Date: 12.03.2017).
10. Ott WE. Voraussetzungen der Zivilrechtlichen Haftung des Arztes, Zurich, 1978: p. 103-4.
11. Buyukay Y., Legal Responsibility of Physicians For Embryo Transfer (in Turkish). II. Sağlık Hukuku Kurultayı, 7-8 Kasım, 2008, Ankara, Turkey, s. 143.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.