Today we comment on a recent judgment of the High Court of Justice of Madrid that has caused a stir due to the type of situation it analyzes and its conclusions: the judgment denies, contrary to the criteria followed so far by the courts for equivalent situations, the coverage by the Administration of an assisted reproduction treatment for homosexual couples. Specifically, the request for assisted human reproduction was requested by a military woman married to a woman.
The ruling is based on the fact that the legal requirements, which require proof of sterility, were not met.
If you need a lawyer for a case of this type, please contact us. The ruling, dated January 31, 2019 (you can read the judgment at this link) confirms the administrative resolution that denied a claimant’s request to the Social Institute of the Armed Forces (ISFA) to fund her treatment.
The resolution argues that the appellant does not suffer from any pathology that prevents her from having children naturally, a requirement demanded by the literal wording of the rule.
Therefore, it is not appropriate for the State to finance such treatment for the fulfillment of something which, according to the ruling, is a “legitimate desire”, but not a “right” .The Madrid court thus does not accept that sexual orientation is a “special situation” that can be covered by a broad concept of “sterility” in order to comply with the requirements of the Agreement between the ISFA and the insurer, thus denying the appellant’s request.
Assisted reproduction in same-sex couples: a wake-up call to legislators
It is true that Law 13/2005 recognized homosexual marriage as valid and deserving of the same legal treatment as heterosexual marriage, but there are still many situations in which it is not clear how to act and where situations are generated that we can consider unfair. The coverage of assisted reproduction treatments is, explains the TSJ, one of these situations of legal vacuum, since the legislator did not foresee how a homosexual couple could accredit a state of clinical sterility that, evidently, does not have to exist. On this issue, the TSJ develops the following:
“In this case, we have explained that, with the modification by Law 13/2005 of the matrimonial regime regulated in the Civil Code, it has been recognized that marriage between persons of the same sex and that contracted between heterosexual persons must be subject to the same requirements and have the same effects.
However, it has also been explained that, in the interpretation of the aforementioned legal and regulatory precepts, this Court understands that the regulation of the effectiveness of these same-sex marriages has not yet been fully addressed by the legislator, who has not yet recognized, for example, the presumption of matrimoniality of children born in the case of marriage between a woman and another woman.expressly requiring, however, the consent of the spouse for the determination of filiation with respect to the wife of the biological mother so that the child born by means of assisted reproduction techniques is also considered as her own child.
Y if in the substantive regulation the legislator does not seem to have wanted to go, for now, further, it is logical that in the area of health care benefits to facilitate the reproduction of same-sex couples (in this case, of a marriage between two women) the Administration is not obliged to cover the expenses derived from assisted reproduction treatments in these same cases eitherIt is their option, as the Constitutional Court has declared, to determine which benefits, with what scope and, above all, when, should they be included in the Portfolio of Services of the National Health System, and, furthermore, in the ISFAS Agreement with the insurance companies, to provide for the financing, from public resources, of treatments for persons of the same sex united in marriage, which will give them the opportunity to fulfill their wishes – not rights, as has been reasoned – of maternity.
And insofar as this has not yet occurred, the binding of this Court to the principle of legality, without any consideration of arguments of opportunity or convenience, imposes on us the obligatory dismissal of the present appeal”.
