ABSTRACT
Along with developments in transplantation there have been major breakthroughs in the techniques of assisted reproduction. The areas of common interest include requesting semen collection from organ donors with a diagnosis of brain death. After the recent report of two cases in the Search Service of Organs and Tissues, we analyzed legislation in our country, which still lacks specific guidance in such situations. Organ transplantation progressively established itself as an effective therapeutic option in our country since the 1960s. It represents viable alternative to improve both the quality and length of life as well as to decrease long-term costs of patients with severe end-stage organ failure. These programs have specific rules and laws that are necessary to guide all stages of transplantation: donor identification, authorization and execution as well as recipients selection of implantation techniques. Assisted reproduction also needs legislation specific for human infertility, a public health problem that affects medical, psychological, and legitimate desires of people. The World Health Organization estimates that infertility reaches 20% of the population demanding the development and use of techniques for its treatment. Brazilian legislation includes regulations for transplantation of organs and tissues in law no. 9434 of February 04, 1997; it provides for the removal of organs, tissues, and human body parts for transplantation and other treatments. This law is regulated by Decree no. 2268 of June 30, 1997, establishing the National Transplant System, which standardizes these processes. The postmortem organ and tissue provision must be preceded by a diagnosis of via the Brain Death Protocol (Federal Council of Medicine-Brazil). The sole paragraph of Article 1 makes clear that its provisions do not apply to blood, sperm, or ovules as confirmed by the sole paragraph of Article 1 in the Decree 2.268/97 regulation. Since there is no specific legislation, assisted reproduction in our country is also regulated by The Federal Council of Medicine resolution, which was recently updated (Resolution no. 1957 December 15, 2010 in item VIII), which provides ethical standards for the use of assisted reproduction techniques provides that "It is unlawful ethical assisted reproduction postmortem since there is specific prior authorization of (a) late (a) to the use of cryopreserved biological material, in accordance with current legislation." Standardization is specific to material collected before the diagnosis of brain death, including being subject to expressed and informed consent of both spouses (item 3, item 1, attached single Resolution 1.957/2010 Federal Council of Medicine). We cannot yet find support in these legal provisions even after brain death for postmortem collection of sperm or ovules. Despite the evolution of the assisted reproduction techniques and the recognition of people's rights and wishes to procreate, this matter still creates complicated ethical and legal issues that seem to be far from being solved in our country.