In the case “L., JL s/ authorization”, the Supreme Court rejected a woman’s request to carry out an Intracytoplasmic Sperm Injection (ICSI) Program with genetic material from her husband, who died in mid-2020.
The couple had been married since 2003 and, according to the woman, they had a common plan to start a family. In 2016, they signed the informed consent for assisted fertilisation for the start of the treatment and, in February 2013, her husband granted her a broad general power of administration and disposal that contemplated “the number of times that is considered necessary for the semen samples of the person appearing.”
However, the man died on September 17, 2020, so his surviving wife requested that she be granted judicial authorization to continue with ICSI, a program initiated during his lifetime with genetic material from him.
In the first instance, the judicial authorization to use the cryopreserved genetic material in a post-mortem assisted fertilization treatment was denied. Later, Chamber A of the National Civil Appeals Court confirmed this ruling. There it indicated that articles 560, 561 and 562 of the Civil and Commercial Code of the Nation are applicable to the case, which establish that the procreative will must be expressed in prior, informed and free consent; and that it cannot be exercised by representation nor can it be presumed as it constitutes the exercise of a very personal right.
The plaintiff filed an extraordinary appeal against this ruling, which was granted only on federal grounds, based on the fact that there were clearly constitutional rights in conflict. Specifically, reference was made to the interpretation of Article 19 of the CN on the reservation of the law and Article 14 bis on the comprehensive protection of the family, as well as the Convention on the Elimination of All Forms of Discrimination against Women.
With the vote of Carlos Rosenkrantz and Juan Carlos Maqueda, a concurring vote of Horacio Rosatti and another of Ricardo Lorenzetti, the Supreme Court declared the extraordinary appeal wrongly granted due to lack of independent foundation, considering that “they lack sufficient arguments to support it and are presented as a generic manifestation without entity to modify the decision in question.”
In his vote, Judge Rosatti analyzed whether the use of the genetic material involved involves the life of a person or a third party and whether there are regulations governing the consent of a deceased person for the use of his or her genetic material for reproductive purposes after his or her death.
Lorenzetti, in another concurring opinion, concluded that “the requirements established by the cited norms require that consent be renewed each time gametes or embryos are used,” and that “consent must comply with the forms required for its validity; and the consent necessary for the disposition of a very personal right, according to our positive law, is not presumed, it is of restrictive interpretation and freely revocable (…) reason why a feeling made post mortem cannot be presumed.”
“The gamete, considered in isolation, does not constitute a physical person protected by the legal system as such. Its availability, therefore, does not put at risk a life that does not exist, because it has not yet been generated, nor the life of the person who produced it because, in this case, he has already died,” said the Supreme Court.
He also pointed out that Article 560 of the Civil and Commercial Code of the Nation establishes that the consent of the owners of the gametes, male and female, is necessary in each attempt to subject oneself to assisted human reproduction techniques. “When it is stated that ‘consent must be renewed each time that…’, any claim that bases said expression of will on a mere presumption or on a statement made for a previous occasion is invalidated,” he added.
Lorenzetti, in another concurring opinion, concluded that “the requirements established by the cited norms require that consent be renewed each time gametes or embryos are used,” and that “consent must comply with the forms required for its validity; and the consent necessary for the disposition of a very personal right, according to our positive law, is not presumed, it is of restrictive interpretation and freely revocable (…) reason why a feeling made post mortem cannot be presumed.”
Finally, the magistrate added that “the procreative will requires, unavoidably, to clearly establish the current will of the persons who have given their consent” and, in this sense, “there is no right of the gamete or the embryo to implantation.”
Dear fellow journalist: If you are going to use part of this note or the attached ruling as “inspiration” for your production, please cite us as a source including the active link to If it is a signed note, do not omit the name of the author. Thank you very much.
