Chamber III of the Resistencia Civil and Commercial Appeals Chamber partially revoked a first instance ruling and excluded the preimplantation genetic diagnosis (PGD) technique from the expenses that the prepaid OSDE must cover for one of its affiliates, in the context of an assisted fertilization treatment.
The sentence, handed down on February 9, 2023, bears the signatures of judges Wilma Martínez and Fabiana Bardiani and, strictly speaking, partially allows for an appeal filed by OSDE against the first instance ruling.
In that, signed by Civil and Commercial Judge No. 6, Jorge Sinkovich, full and comprehensive coverage of the highly complex assisted fertilization treatment called ICSI at the Assisted Reproduction Medical Center had been ordered “up to the limit of the highest amount that OSDE pays the contracted provider centers in the city of Buenos Aires for treatments similar to those suggested by the treating physician”. In addition, he imposed things on the prepaid.
What is the PGD?
Preimplantation Genetic Diagnosis (PGD) is a technique that allows, through an embryo biopsy, to detect chromosomal or genetic alterations of an embryo before implantation. In other words, it would enable selectivity and/or prior discarding of the embryos that will be implanted in the assisted fertilization process.
In this context, the chambermaids cite the specialist in Family Law, Marisa Herrera, who pointed out that a new term has recently been coined to designate this type of analysis: PGT-M (Preimplantation Genetic Test for monogenic diseases), whose purpose of differentiating between reproductive techniques and preimplantation diagnosis, since the latter would have other objectives than those provided for in the legislation, that is, to help those couples with fertility problems.
The PGT is not provided for in the law
In their foundations, the chambers clarified that it is not in dispute that the fertilization procedure is provided for in law 26,862 and its regulatory decree 956/2013. However, they warned that the first instance judge should have ruled on the prepaid statement regarding the inclusion of the so-called preimplantation genetic study (PGT) within the “total and comprehensive coverage.”
In this regard, the judges pointed out that “if we abide by the express text of the aforementioned regulations (law 26,862) we are convinced that the appellant is right in that the inclusion of the budgeted PGD technique within the ordered coverage does not correspond ”.
The court of appeal cited a precedent from the Supreme Court of Justice of the Nation of September 2015, which in a case that reached its study rejected the coverage of the preimplantation diagnosis technique. Thus, they warned that “the lower courts have the duty to conform their decisions to the judgments of the High Court handed down in substantially similar cases” and that to depart from the doctrine of the Supreme Court “it is necessary to provide new arguments that justify modifying the categorical position seated by that Supreme Court”.
In this context, they considered that “there are no exceptional circumstances that warrant differentiating the solution in the case, when the plaintiff has not even provided evidence that proves and/or justifies the need for such a study in the face of the express and reiterated refusal of her opponent, plus even when there are no explicit regulations regarding the use of the DGP/PGT -me similar”.
