After the enactment of the Voluntary Interruption of Pregnancy (IVE) law, specialists in fertility and family law drew attention to the persistent legal vacuum in which there are more than 20 thousand frozen embryos that will never be implanted as unviable or because their owners do not want to carry out a new pregnancy or donate them; but they cannot be ruled out either, since there is no rule that provides for this possibility.
In this context, the IVE law could function as a new legal argument for obtaining judicial authorizations that lead to the cessation of cryopreservation, a way that at least four couples had found in Argentina to discard their embryos before the approval of the standard.
Is that, following the maxim that indicates that “who can do more, can do less”, the logic indicates that if it is possible to interrupt a gestational process until week 14, it should also be possible to do with frozen embryos. “In Argentina there are at least 40 thousand frozen embryos; half or less have a chance of being transferred because the parents want to have more children, but the rest will stay in a clinic forever,” the assisted reproduction specialist told Télam. director of the Valencian Research Institute (IVI Buenos Aires), Fernando Neuspiller.
Furthermore, “around 20% of those we have in storage are genetically abnormal embryos that have no chance of survival,” he added. But even in these cases they cannot be ruled out and consequently clinics are forced to sustain the expensive procedure of cryopreservation of embryos whose owners “at some point stop paying” because they cannot or do not want to face the $ 300 annual cost of maintenance, but also do not donate them to other people with fertility problems or try a pregnancy again. “For us it is a cost and an extra responsibility, because I end up being the obligatory tutor,” said the obstetrician whose clinic performs 1,000 in vitro fertilization treatments annually.
The lawyer magister in Family Law Federico Notrica explained to Télam that the last bill on the protection of non-implanted embryos that contemplated discarding and donation for scientific research as two other legal destinations lost parliamentary status.
Similar initiatives have been presented since 2014 and the one that most prospered obtained half a sanction from Deputies, but was never dealt with by the Senate. “There is a legal vacuum because on the one hand we have the law 26,862 of coverage (of assisted human reproduction techniques), which when it talks about embryos says that they can be cryopreserved or donated to other couples always for procreation purposes, but nothing more”, said Notrica, who belongs to the Family and Succession Chair of the Law School of the University of Buenos Aires (UBA) by the renowned specialist Marisa Herrera. “It is a debt that the new Civil and Commercial Code has, which in its transitory provisions says that a special law is required to protect the non-implanted embryo,” added the professor at the University of Avellaneda.
The lack of legislation leads to absurd situations such as the appointment of a lawyer as “guardian of embryos”, some of which even threaten the health or dignity of people. “Once, when I was practicing the profession, a couple in their 60s came to see me who for 18 years had had twins by assisted human reproduction techniques, but since she could not sleep thinking they had cryopreserved embryos, they asked the fertility center to discard them.
The only option they were given is for her to go into the hospital to transfer the embryos that, due to their age, were not going to take hold.
A delirium, “Notrica said.
While there is no specific law, the main legal obstacle to the discard of embryos is the same that the anti-rights used to attack the IVE law: a conservative interpretation of article 19 of the Civil and Commercial Code of the Nation. “This article says that the beginning of a person’s existence occurs with conception, and there the point is what is meant by ‘conception’: for the most conservative it is equal to fertilization – union of the sperm with the ovum, even in a pipette – while for the other position, which we share, conception equals implantation in a uterus, “he said.
And the main legal support in favor of this second position and of the constitutionality of a future law that allows the discard of embryos, is Article 4 of the American Convention on Human Rights and the ruling “Artavia Murillo” also cited at length in the debate. of legal abortion. “The Convention says in Article 4.1 that ‘everyone has the right to have their life respected’, and that ‘this right will be protected by law and, in general, from conception’; there we see that person and life they are not synonymous, “he explained.
In the Argentine normative structure, “life is not defended at any cost, at some point”, otherwise a “law of dignified death” could not have been approved, but also “life is not an absolute right”, because of otherwise, the Penal Code would not contemplate “legitimate defense,” said Notrica. “On the other hand, the Artavia Murillo ruling incorporated a central element which is the notion of gradualness (of rights) between three separate levels: non-implanted embryos as a first instance of that chain of life but not of person, fetus or person unborn that is already within the pregnant person, and the person born alive, “he said.
At this point, “the way for frozen embryos to be discarded is somehow paved” by the IVE law that enables discarding at a higher level of gradualness, he explained to Télam. Although “my interpretation is that this law cannot be used to proceed to discard”, it is still true that “in the absence of a law, article 19 of the Constitution governs, which says that ‘everything that is not prohibited, it’s allowed, ‘”he said. “If a woman can voluntarily have an abortion, another who underwent assisted reproduction treatment must have the same right and does not want to have more children or donate her frozen embryos,” Neuspiller said in turn.
For the doctor, “it should be possible to rule out frozen embryos supported by the IVE law”, in the absence of specific legislation and by virtue of “a reasoning of pure logic”.
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