El contrato de reproducción asistida en España: naturaleza y usuarias con discapacidad

The use of assisted human reproduction techniques is based on the prior, informed and written consent of the recipient. When the practice takes place in the field of private healthcare, this consent is framed in a contract in the medical field, specifically within the so-called ‘medicine of satisfaction’, which generates doubts as to the nature of the obligations derived from this contract, taking into account that the jurisprudence of the Supreme Court has oscillated between its categorization as an obligation of means or of result, with the consequences that this entails in order to assess a possible breach of contract. To this must be added the fact that Law 14/2006 on assisted reproduction techniques maintains the terminology prior to the reform of Law 8/2021, stating among the requirements for users the ‘full capacity to act’, which may raise doubts as to whether this is an oversight by the legislator or whether it may imply limitations for access by users with disabilities, in contravention of the principles of the Convention on the Rights of Persons with Disabilities.