Establishing Lithuanian Assisted Reproductive Technology Policy

Master, KAIST Graduate School of Science, Technology, and Policy
Monika Didziulyte
monikadidziulyte@kaist.ac.kr

Introduction

Biotechnology has given rise to drastically different national discourses of safety and risks, conventionality and disruptiveness, naturalness and artificiality[1]. Assisted Reproductive Technologies (ART), a highly ethically, religiously, politically and legally sensitive emerging technology, substantially complicated policy-making processes across the globe. In vitro fertilization (IVF), surrogacy, and egg or embryo donation, to name a few, are at odds with conventional understanding of the traditional nuclear family, raise questions of accessibility to different groups including LGBTQ+, and challenge existing legislation[2]. Divergences in discourse, ethical reasoning, and policy-making, determined by different political cultures, resulted in the establishment of varied national policies, begging the question of whether universal regulations are at all feasible[3]. In member states of the European Union (EU), which must stay true to their national identity, coordinate policy actions with neighbours, and comply with the union’s objectives, this problem is particularly acute[4]. Therefore, analyzing relevant national policies, as well as conducting comparative policy studies is necessary for a better understanding of local dynamics and future decision-making.

One of the major obstacles to successful regulation across the EU is unequal access to ART services in the member states. Unequal or restricted access incentivizes people to look for opportunities abroad, in Europe, or even outside. This is an issue because it is much more difficult to ensure the safety of service recipients, quality of provided services, and provision of informed consent among gamete donors and surrogates[5] [6] . Understanding concrete reasons why specific ART are restricted in particular countries is thus crucial to future policy- and decision-making. The target of this paper is, therefore, to provide an analysis of the Lithuanian ART Policy, specifically the regulation of its accessibility to different agents, including unmarried couples, single women, and homosexual women. The choice of the country stems from the fact that among the Baltic States (Lithuania, Latvia, Estonia), which are largely understudied, Lithuanian legislation is the strictest: not only homosexual couples (such as in Latvia) but also single individuals are denied access to IVF, egg or embryo donation, and Pre-Implantation Genetic Diagnosis (PGD)[7].

Since there is virtually no literature covering the Lithuanian case, this paper will have both descriptive and normative features. The paper will mainly rely on Document Analysis[8]– a collection, systematization, interpretation, and analysis of official documents (transcripts of parliamentary meetings and parliamentary bills). Based on the initial document review, the Lithuanian ART legislature’s roots can be traced back to the discussions that took place from 2010 until the final, or rather, current legislation adoption in September of 2016. Although since that time, the ART bill has been added upon, substantial changes have not taken place. Therefore, it was decided to specifically focus on the documents available shortly before, and upon the adoption of legislation. In particular, the analysis included a thorough review of the following documents: 1) the transcript of the assisted insemination committee meeting dated 20 April 2016; 2) the project of the bill on assisted insemination dated 28 June 2016 (XII-2491); 3) the president’s decree calling for the bill’s reconsideration dated 5 July 2016 (1K-704); 4) the transcript of the parliamentary seating when the bill was being voted upon, and 5) final assisted reproductive technology bill dated 14 September 2016 (XII-2608). 

The following paper will have two main body parts, and a discussion and conclusion section, outlining specific normative claims. In the Reproductive Politics in Lithuania part, to understand the logic of Lithuanian bioethical reasoning and policy-making, the paper will present general reproductive politics trends in Lithuania, focusing on sexuality education, sexual health awareness, and abortion rights. The adoption of the Lithuanian ART legislation part will present the process of adoption and content of the current ART policy, as well as the main forces guiding decision-makers and framing the legislature.          

I. Reproductive Politics in Lithuania

Sexuality Education & Sexual Health Awareness

Sexuality Education in Lithuania is not being implemented properly. The Department of Youth Affairs under the Ministry of Social Security and Labor identifies the silencing of sexual topics in the Soviet Union and the strong political influence of the Catholic Church as two major reasons for the lack of development of sexual education in the country[9]. In 2016, the Minister of Education and Science approved a bill “On the General Program for Health and Sexuality Education and Family Preparation[10]”, however, it is not being implemented efficiently or effectively. The program was criticized as being based on religious beliefs rather than science, promoting the concept of a traditional family created through marriage, and focusing on prohibitions and abstinence without providing a clear, effective and holistic explanation. In this regard, the then vice-minister of Education and Science Natalija Istomina responded: “I am confident not only as a vice-minister but also as a researcher about the fact the program is innovative and science-based. The opinion of the Church as a custodian of values is taken into account but I don’t think it’s a bad thing[11]”. Ironically, when it became clear that there are not enough specialists to provide sexuality education in Lithuanian schools, the Faculty of Catholic Theology of Vytautas Magnus University came forward offering training courses for future sexuality educators[12].

The program prohibits discrimination based on sexual orientation and prohibits actions and behaviours that may cause a person to experience dissatisfaction with their body, appearance, or sexual orientation. Nevertheless, the program lacks specific guidance on how to include educational content concerning sexual orientation in the school’s curriculum. The program also avoids using LGBTQ+ and related terminology and uses sexual identity and sexual orientation instead, speaking about these only in very general terms. The government currently does not support the LGBTQ+ organizations working in the field of education[13]. At the same time, Lithuanian society holds hostile attitudes towards the community, and the rate of bullying cases based on sexual orientation in Lithuania is one of the highest in the EU[14]. Education about the LGBTQ+ community and their issues, thus, remains unmanaged.

Although the program covers topics related to fertility and family planning, it lacks sufficient information and depth when it comes to topics like Sexually Transmitted Infections’ (STI) prevention and contraception, termination of pregnancy and gender identity, and communication about sex, including consent. The 1 Annex of the Program regulates the Development of Students’ Sexual Education and Family Planning Capacity over the course of elementary, middle, and high school. Under the 2.5 Puberty section, students in 11-12 grades, most of whom are of age (18 years old), are expected to consciously control their behaviour with others and take into account possible future consequences. The student is to behave responsibly, meaning he/she “abstains from sexual intercourse, knows how to use contraceptives to prevent unwanted pregnancies and sexually transmitted infections using condoms, contraceptives, etc.”[15]. No further specifications on the depth and scope of information are provided. 

The review of the formerly conducted research points to low levels of sexual health awareness among youngsters and the general population in Lithuania. A study from 2019 showed that STIs like chlamydia and gonorrhea were most common among young people (aged 20-29), 55.2% and 53.6%, respectively. In cases of all studied STIs (chlamydia, gonorrhea, syphilis, and AIDS), more than half of respondents used barrier methods of birth control (condoms) never or very rarely. The overall situation regarding sexual health is also quite alarming. Figure 1 shows the incidences of syphilis, gonorrhea, chlamydia, and HIV infections between 2015 and 2019. The overall dynamic between cases was very insignificant showing that the issue is persistent[16]. According to the data from 2016, the share of births of first children to teenage mothers in Lithuania was among the 6 highest in the EU; it amounted to 5.4% and was higher than the EU‘s average of 4%[17]. These are clear indicators of low sexual health awareness, yet these topics are vaguely if at all mentioned in the program as important to discuss with students. Furthermore, not only are administrators and teachers largely untrained to discuss these topics but also the bill guarantees schools a right to freely choose how to implement this program[18], which leads to variance in quality and scope of sexual education between institutions.   

Figure 1. incidences of syphilis, gonorrhea, chlamydia, HIV infection in Lithuania, 2015-2019 

Abortion Rights

Surgical Termination of Pregnancy (thereafter, abortion) is legal upon a woman’s request for up to 12 weeks, provided that there are no contraindications to the surgery; abortion is permitted beyond 12 weeks when the pregnancy poses a threat to the life and health of the woman. The aforementioned contraindications may include acute and subacute inflammation of genitalia, inflammation in other locations, and acute infectious diseases. These have to be treated before the procedure can be performed[19]. The abortion regulations in Lithuania appear to be relatively permissive. That is, however, not without struggle as abortion rights are constantly being questioned. In 2018, for instance, the abortion ban, initiated by the EAPL-CFA (Electoral Action of Poles in Lithuania – Christian Families Alliance) party, became a part of Parliament’s spring agenda. The project of the bill, declaring that life begins with the fertilization of a woman, established that the rights of the prenatal child are the main priority when addressing any issues related to the protection of prenatal life. Pregnancy endangering a woman‘s life or health and pregnancy as a result of a criminal offense would be the only two exceptions to the law[20]. It is worth mentioning that conservatism of ideas and radicalism of the offered actions of EAPL-CFA are not shared by the majority of political actors. However, the fact that this bill‘s project made it to the Parliament‘s agenda is speaking of Lithuanian decision-makers‘ complaisance with the anti-abortion conservative groups.

Although according to Lithuanian Constitution (1992) Lithuania is secularized country[21], the influence of the Catholic Church and its values on political decision-making concerning family life and body politics is quite strong. For instance, the Lithuanian Family Movement, a civil movement for the protection of traditional (Christian) values and traditional/natural family, in their program had set „to protect Lithuania from […] universal justification of abortion“ and to prevent legalization of homosexual partnerships[22]. In Figure 2, the Lithuanian Family Movement’s representative is holding a poster stating “Remove the trans-conservative fascist clique!” The protesters are referring to the ruling party (TS-LKD/ The Homeland Union – Lithuanian Christian Democrats) as “trans” (transgender). 

Figure 2. The Lithuanian Family Movement’s representative is holding a poster: “Remove the trans-conservative fascist clique!” Source: https://seimusajudis.lt/galerija/

This is an example of using gender identity as a derogatory adjective, illustrating discriminatory attitudes and anti-LGBTQ+ sentiments. The Lithuanian Family Movement is also one of the most active actors opposing the ratification of the Council of Europe‘s Istanbul Convention (2011) set to prevent and combat violence against women because of the alleged imposition of „gender ideology“[23]. Lithuania, which in 2018 was among five EU countries with the highest rates of femicide, signed the Convention in June of 2013 but has not ratified it yet. According to the data from 2019, Lithuania holds 20th (out of 28) place regarding Gender Equality Index (58.4), which is below the EU’s average (68) and other Baltic States (Figure 3)[24].

Figure 3. EU Gender Equality Index, https://eige.europa.eu/gender-equality-index/2021/domain/violence/LT

In May of 2020, during the first wave of the COVID-19 pandemic, when medical facilities limited their activities, women wanting to exercise their right to abortion had struggled to make an appointment; some turned to online forums looking for ways to terminate a pregnancy at home, ordering medications from abroad. In this regard, the then minister of Health Aurelijus Veryga commented that the non-provision of abortion services is a good opportunity to reconsider the decision[25]. Although the comment had caused a wave of indignation, the case captures the shaky stance of political actors on the subject sensitive to Lithuanian society. Veryga‘s remarks on the legalization of medical abortion (MA), which has been recommended as a safe, cost-effective, and non-invasive pregnancy termination method in the first trimester[26], were not just vague but degrading. To put it in context, in March of 2021, the Freedom Fraction, represented by the spokeswoman Morgana Daniele, applied to the Ministry of Health to legalize MA as an alternative to surgical termination of pregnancy, appealing to values of scientific progress and women’s rights[27]. When asked for expert opinion, Veryga replied: „Certain biological, ideological, and value issues intersect here. I am neither very much for nor very much against medical abortion. I am against legalizing it now without a system for helping women in crisis. […] It is unfortunate that it wasn‘t possible to establish mandatory consultation with a psychologist before making a decision to have an abortion so that a woman would have been given a couple of days to change her mind[28]“. Patronizing discourse framing a woman seeking abortion as needing psychological guidance that would desirably change her mind could probably be interpreted by either genuine anti-abortion stance, lack of strong political will, or as an attempt to please anti-abortion groups within the society. The „women in crisis“ is also an exemplary euphemism, implicitly referring to all women who terminate their pregnancy as distressed and unable to make a conscious decision. 

II. The adoption of Lithuanian ART legislation 

The original draft of the law on assisted reproductive technology in the Republic of Lithuania (N. XII-2491), dated 28 June 2016, was vetoed by the then-president Dalia Grybauskaite, who returned the project with comments for the parliament to revise[29]. In a decree, calling for the parliament to reconsider the relatively conservative and restrictive project of the bill, dated 5 July 2016[30], the president referred to the Lithuanian Constitution‘s 53rd Article’s paragraph 1, stating that the state is obliged to take care of people’s health and guarantees medical assistance and services in the event of a person’s illness[31]. Further, the decree referred to the Constitution’s Article 29[32], presenting the principle of equality, which does not allow for the establishment of legislation discriminatory towards people based on their illness. In other words, advanced medical therapy for diseases, including assisted reproductive technology established in Lithuanian law as a method of infertility treatment, cannot be prohibited or unreasonably restricted based on an individual’s condition. Furthermore, the decree appealed to Lithuania ratifying the International Covenant on Economic, Social and Cultural Rights, a multilateral treaty adopted by the United Nations General Assembly in 1966[33]. Under Covenant’s Article 12 Paragraph 1, Lithuania ought to recognize every human’s right to the highest attainable standard of physical and mental health. Finally, the decree built its argument upon the European Court of Human Rights (ECHR) interpretation of Article 8 of the European Convention on Human Rights. According to ECHR, the decree emphasizes, a right to respect one’s private and family life includes the couple’s right to have a child using assisted insemination. Based on the argumentation given before, the President‘s decree suggested changes, which have later become a part of the final bill adopted by the parliament on 14 September 2016. The President’s veto was supported by simple majority vote; 101 members of the parliament have voted: 53 voted in favor, 40 – against, and 8 abstained from voting. 

Concerning changes, the amendments were applied starting from Article 2, which presents all the key concepts/terminology of the assisted reproductive technology law and thus constitutes its foundation[34]. Particularly 2nd paragraph of Article 2 of the bill, defining assisted insemination, was changed to a more permissive. The initial version presupposed the application of medical technologies causing a woman‘s pregnancy only in those cases „where infertility cannot be cured by any treatment, and if there is no real chance of success.“ This condition was removed from the revised version of the bill, defining assisted insemination shortly as a process „using medical technology involving manipulation of germ cells and/or embryo to cause a woman‘s pregnancy.“ It is worth noting, however, that paragraph 7 of Article 2, which defines human embryo and is one of key obstacles to parliamentary members agreeing on the subject, remained unchanged. The paragraph defines embryo as a „developing human organism from the moment of insemination (creation of zygote) till woman’s 8th week of pregnancy.“ Such framing/definition serves as an argument and a reference point for conservative parliamentary members, equalizing the worth of human embryo to that of human’s (person’s). Furthermore, such a definition is consensual neither in scientific community nor in national policies; different countries define embryo in a plethora of different ways or refuse to define it all. Some of the examples of embryo’s definitions in national policies include „discrete entity“ (Australia); „the cell or the organic set of cells capable, as they develop, of becoming a human being“ (Belgium); „totipotent cell which if the necessary conditions are met, is able to divide and develop into an individual“ (Germany); „fertilized oocyte“ (South Korea); and „stage of embryonic development“ (Spain)[35]. Some of the embryo definitions endow it with the same or similar value as that of an actual human, whereas others consider it merely as a potential of becoming a human. Establishing that there is no one universal concept of an embryo is crucial to understanding that definition of and permitted manipulations with the embryo are more often than not based on valuative, ideological and political rather than scientific judgement. This position, however, is shared by some of the members of Lithuanian society, who have protested against the President’s decree and for the original version of the bill (Figure 4 & 5)[36]

Figure 4 & 5. Protesters against the President’s decree holding posters: “A human embryo is not a medical waste!” & “A child never expires, let’s not throw in a container” Source: https://www.bernardinai.lt/2016-07-05-ekspertai-atskleide-kas-ir-ka-melavo-apie-priimta-pagalbinio-apvaisinimo-istatyma/

Moving forward, the decree’s comments mentioned compensation for the donation of gametes, whereas original project of the bill did not[37]. The 6th paragraph of Article 3 was limited to a single sentence, stating that “germ cells and embryos cannot be objects of commercial transaction.” It is because firstly, the non-commercialization of embryo was one of the most sensitive topics discussed within the parliament, and secondly, because the use of donated gametes through a third party’s donor was not allowed at all. The 7th paragraph of Article 3 initially forbade a woman from using gametes provided by a donor unrelated to her through marriage or registered partnership. The revised version of the paragraph allows gamete or embryo donation using a third party in cases when either of the partners’ germ cells are damaged and if there is a high risk of transmitting disease, causing “severe disability.” Similarly, the 1st paragraph of Article 5, which initially allowed the use of assisted reproductive technology only in cases when all other methods failed and “there is no real chance of success in curing” infertility, was amended to include instances when avoidance of transmission of “severe disability”-causing disease is pursued. Consequently, after the president’s revision, 6th paragraph of Article 3 was extended to specify that although germ cells and embryos cannot be objects of commercial transaction, gamete donors have the right to be reimbursed for the costs incurred during the process of donation.

The 10th, and most crucial to our discussion, Article was changed altogether. Originally, the 1st paragraph allowed the creation of only as many embryos as will be transferred in a woman‘s body with a maximum number of created embryos not exceeding three. The provision, if implemented, would have encouraged a risky multi-embryo transfer because the creation of just one embryo per treatment cycle significantly decreases a couple‘s chances of success and increases financial costs due to the probable necessity of repeated therapy. Conversely, a revised version of the Article does not limit the number of created embryos and allows the couple to decide on the number of transferable embryos upon consultation with the specialist. The decree‘s motivation to change the substance of the Article appealed to the international infertility treatment standards and recommendations provided by the World Health Organization, establishing that the number of embryos to transfer should be adequate to minimize the risk of multiple pregnancies (pregnancies with more than one fetus).

Discussion and Conclusions

The ART policy integrates into the pre-existing Lithuanian reproductive policy infrastructure. The conservativism of narrative prevailing in reproductive politics was evident both in the discussion preceding adoption of policies and the legislature, defining and restricting the use of ART. The analysis of the current state of reproductive politics pointed at low levels of sexual awareness; at low quality, and lack of consistency and comprehensiveness of sexual education; at the discriminatory sentiments against the LGBTQ+ community and gender-based discriminatory attitudes; at the commonly shared unscientific ideologically or religiously charged agenda; and at the attempts to preserve traditional, conventional, Christian values and family order. Above all, the analysis showed similarities between the language used by right, pro-life, and religious groups and by the governmental representatives. The process of adoption and substance of the current ART policies, too, can be characterized by these traits.

Lithuanian assisted reproductive technology policy is in line with the national family policy; it focuses on guaranteeing the allegedly most development-friendly, family based on marriage or registered partnership, environment for the future child. Human embryo both in the eyes of the law and seemingly in the eyes of the public is the life of a human, whose value is equal to that of an actual person. Both representatives of the general public and decision-makers, such as parliamentary members, refer to the statement that human life begins with the moment of conception as an indisputable truth of medical science. In the ART bill, this belief is solidified through the human embryo’s definition as a “human organism.” Although such a definition is viable, presenting it as an artifact of scientific convention and consent is incorrect and illegitimate. Such a definition is consensual neither in scientific community nor in national policies of other countries. Nevertheless, given that “life of an embryo” was being prioritized over a couple’s choice and, in some cases, health of a woman, the final ART bill is liberal enough. The revised and adopted version of the bill does not limit the number of created embryos and allows the couple to decide on the number of transferable embryos upon consultation with the specialist. This provision minimizes risks of multiple pregnancies subsequently decreasing risks of complicated/risky pregnancies.

The traditional, conservative agenda based on Christian Catholic values was evident not only among the representatives of the right wing of the parliament but also among many of the public representatives. As stated above, the discussion about the ART legislation took place for almost 5 years before the bill was finally adopted in its relatively permissive form. During those years, experts, medical practitioners, NGOs, academic scholars, politicians, activists, catholic bishop’s associations, civil movements and even regular families took part in giving suggestions and opinions on the future legislation. Among their testimonies, presented in the transcript of the assisted insemination committee meeting, the preservation and protection of the traditional nuclear family, consisting of a father, mother and their biological child, was a commonly shared value. Consequently, the fact that the subject of allowing single women access to assisted insemination, framed in Lithuanian law as an infertility treatment method, was only discussed in the context of their infertility is not surprising. Evidently, a single woman’s will to conceive a child is put below the potential child’s right to have a full and functional (traditional) family. Furthermore, if single women were considered in the discussion, the access of LGBTQ+ individuals to these technologies was never part of the agenda at all.

Apart from understanding the traditional constitution of the family as the only best attainable option for the healthy development of the child, this narrative included considering the third party gametes’ and embryos’ adoption as depriving a future child of their right to know their biological parents and ancestry. Concern over inability of preserving biological ties with the future child and deprivation of knowledge about their ancestry coupled with risks of gametes and embryos’ commercialization made for a complicated case. Given that these considerations were significantly emphasized throughout all the years of heated debates, allowing the use of donated gametes, and permitting reimbursement of donor’s costs incurred during the donation were and remain to be highly progressive provisions. 

Conclusively, although the future of potential access to ARTs provided to the larger scope of societal groups currently seems quite pessimistic, the study succeeded in identifying certain leverages that can be pulled to make the policies more progressive. The progressive amendments applied to the bill’s project by the president were based on the appeal to the Lithuanian Constitution, international medical standards, and international law. Knowing and skillfully appealing to the Constitution is a necessary precondition to successful lobbying. Furthermore, understanding that international expertise and legislation are respected, policy-makers and civil movements can utilize international organization’s statements and Lithuania’s obligations to international treaties to strengthen policy argumentation.

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[30] 「Prezidento Dekretas dėl Lietuvos Respublikos Seimo priimto Lietuvos Respublikos pagalbinio apvaisinimo įstatymo Nr. XII-2491 grąžinimo Lietuvos Respublikos Seimui pakartotinai svarstyti, Nr. 1K-704,  Lietuvos Respublikos Seimas, TAR (2016-07-05), 1K-704 Dėl Lietuvos Respublikos Seimo priimto Lietuvos Respublikos pagalbinio apvaisinimo įstatymo Nr. X… (lrs.lt)

[31] 「Constitution of the Republic of Lithuania 1992, article 53, (1992-10-25」, http://www3.lrs.lt/home/Konstitucija/Constitution.htm

[32] 「Constitution of the Republic of Lithuania 1992, article 29, (1992-10-25」, http://www3.lrs.lt/home/Konstitucija/Constitution.htm

[33] 「International Covenant on Economic, Social and Cultural Rights, vol. 993, p. 3, UN General Assembly (1996-12-16)」, https://www.refworld.org/docid/3ae6b36c0.html 

[34] 「Lietuvos Respublikos pagalbinio apvaisinimo įstatymas, Nr. XII-2608, Lietuvos Respublikos Seimas, TAR (2016-09-19)」, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/f31c44c27bd711e6a0f68fd135e6f40c

[35]  Matthews, K. R., & Moralí, D. (2020), “National human embryo and embryoid research policies: a survey of 22 top research-intensive countries”, Regenerative Medicine, Vol. 15(7), pp. 1905-1917.

[36]  「Keršanskienė M., (2016), Ekspertai atskleidė, kas ir ką melavo apie priimtą Pagalbinio apvaisinimo įstatymą, bernardinai.lt」, https://www.bernardinai.lt/2016-07-05-ekspertai-atskleide-kas-ir-ka-melavo-apie-priimta-pagalbinio-apvaisinimo-istatyma/

[37] 「Prezidento Dekretas dėl Lietuvos Respublikos Seimo priimto Lietuvos Respublikos pagalbinio apvaisinimo įstatymo Nr. XII-2491 grąžinimo Lietuvos Respublikos Seimui pakartotinai svarstyti, Nr. 1K-704,  Lietuvos Respublikos Seimas, TAR (2016-07-05), 1K-704 Dėl Lietuvos Respublikos Seimo priimto Lietuvos Respublikos pagalbinio apvaisinimo įstatymo Nr. X… (lrs.lt)

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