The Supreme Court of Justice of the Nation resolved to call a public hearing to resolve whether or not an ex-partner may destroy their cryopreserved embryos in a laboratory. In this way, it ignores the Voluntary Interruption of Pregnancy Law that enables abortion up to the 14th week and seeks to rediscuss aspects that were previously agreed upon. If a person is empowered to discard her fetus when it is already implanted, why couldn’t she dispose of it freely when the genetic material is at an earlier stage in a fertilization clinic? In an underhanded way, the highest court seeks to open questions that contain remnants of an already settled discussion about what is the legal status of an embryo and, underlyingly, at what moment life begins.
“This family is requesting the cessation of cryopreservation, and the reality is that the discarding of embryos has already been resolved in Argentina because there is an abortion law in our country. That’s why, what the Court is doing is outrageous. It might not consider the ruling of the Inter-American Court binding (Artavia Murillo et al. ruling), but with our standard it is clear: if one can discard an embryo up to the 14th week of pregnancy, how can it not be discarded when it is in a laboratory at 120 degrees? below zero. It doesn’t make sense and it’s also very dangerous.”, says the legislator Mara Brawer.
It is dangerous, according to Brawer, because it opens the window to rediscuss a conquest already achieved and cast doubt on a consensus achieved. From a lateral debate and in an underhanded way, he questions the IVE: “They seek to return to discuss and implant a debate where there is none. They call a public hearing because they want to hear the anti-rights again. Again they want to decide if the embryo is life, if it is murder. Clearly, it is the intricacy they found to be able to go back or at least put into question rights already won. I don’t want to think about what would happen if the Court did not decide correctly”.
“If Argentina legalized abortion, with which a person can terminate the pregnancy, and their will prevails before the fetus, their will will prevail much more if compared to a lower stage of development of an embryo”, points out Eleonora Lamm, PhD in Law (University of Barcelona) and expert in the area. She then maintains: “If there is already a law that gives prevalence to reproductive autonomy, it is not understood why now the entity that has in vitro genetic material, which is nothing more than a set of cells, should be put into discussion.”.
Marisa Herrera, PhD in Law (UBA) and Conicet independent researcher, shares Lamm’s position and affirms: “After the IVE Law it is clear: whoever can do the most can do the least. If I can rule out an implanted embryo until week 14, how can I not be able to do it much sooner? Not really a case for public hearing”.
The legal vacuum excuse
The conflict arose when the ex-partner went to the laboratory in the Autonomous City of Buenos Aires where they had carried out the treatment for the cryopreservation of their embryos, in order to request its interruption. From assisted reproductive techniques, he had obtained three embryos and wanted to destroy the genetic material. As the health center denied this chance – they alluded that a court order was required to comply with this request – the ex-partner filed a lawsuit.
The immediate antecedent is from 2014. Faced with fertility problems, the ex-marriage had gone to the clinic and the following year had their first daughter. The other embryos were cryopreserved, so they are currently seeking the Court to authorize their discarding, but the highest court argues the existence of a legal loophole.
Although in 2015, with the reform of the Civil and Commercial Code, a law was foreseen that could legislate on these cases of non-implanted embryos, the issue was not addressed by Congress. Mara Brawer, deputy of the Frente de Todos, is the author of a legislative project that aims to regulate how to dispose of the embryos. “At the time I wrote a project that sought to shed light on this type of debate. It dealt with the prior agreement that there should be between the donors of the embryos to stipulate the destination. One generates embryos and in many cases it does not match the number of those needed, which is why it is so important to express the will regarding the future of those that are not implanted. He also referred to the scientific use of genetic material and other aspects ”.
For Brawer, then, although it is necessary to regulate general aspects of embryos, in this specific case there is no legal vacuum that warrants the call for a public hearing. “Juridically, the state of development of an embryo in a test tube is less than that of an embryo when it is implanted“, highlights.
Lamm agrees with the legislator and points out: “Although there is no specific law on what to do with non-implanted embryos, there is a whole battery of regulations –such as the assisted reproduction law, the IVE, the Civil and Commercial Code, or , the jurisprudence of the IACHR– which establishes that these in vitro embryos cannot be given the entity of a person as is intended to be done now”. Indeed, according to the specialists, if a systemic interpretation of the legislation were carried out, the situation would leave no room for doubt.
He article 19 of that same code determines the existence of the person from its conception, without distinguishing where the embryo is located, endowing it with protection and rights. Failure “Artavia Murillo et al. Costa Rica” of the Inter-American Court of Human Rights, for its part, stipulates that the right to life is protected once the embryo is already implanted and not before.
One aspect that those who are against the destruction of embryos use is that before destroying them, the ex-partner could donate them to another sterile couple who wanted to have them. But here the discussion branches out and opens multiple windows because the authorization of those who contribute the gametes is required for this to happen. And, in this case, a priori, the contributors would not agree to this transfer.
The speculation of the laboratories
It is also essential to note the role played by the Buenos Aires assisted reproduction clinic. It is about keeping an eye on the signing of the informed consent because, precisely in order to avoid these future discussions, the parties sign this document. Through this instrument, the institution and those requesting the service come to an agreement, and the rights and obligations are expressed.
In this line, Lamm refers to the actions of the laboratories. “In many cases, it is the assisted reproduction centers that are setting some limit and requesting a judicial authorization, when in truth an authorization of this type does not correspond. The people who contributed the genetic material have the power to decide what to do with it.”
According to the principle of legality, everything that is not prohibited is allowed. Therefore, in the absence of a specific law that regulates what can be done with those embryos, individuals could do whatever they wanted. “It is also true that the centers cover themselves and delay the procedure because in the middle they continue to charge the cryopreservation service that is paid from an annual amount”, details the expert. All the actors who chime in speculate and extract some revenue under the argument of a legal vacuum. Scapegoat for surreptitious interests.
However, it is worth noting: many laboratories are not opposed to giving the genetic material to their contributors so that they make a free provision in this regard. “You have to see the number of embryos that are returned to their contributors by judicial authorization and do not reach the Court. There are many, but well, we must not forget that the medical community is quite conservative, ”says Herrera.
Maneuver in the open
Although the current one seems like an emerging bid, what is sought with this call is to rediscuss laws such as the IVE that in the recent past were sanctioned with legal, scientific and social consensus. “This situation does not leave me at all calm. The fact that the Court has put this issue on the agenda is not at all innocent. Issues that have already been duly discussed in our society are submitted for discussion. In any case, what is linked to the regulation of embryos needs a specific law, which is the task of Congress and not of Justice,” he says. Nelly Minyerskylawyer and one of the founders of the National Campaign for the Right to Legal, Safe and Free Abortion.
“This issue is sensitive because it is political. We clearly know what the ideological position of some members of the Supreme Court is, and the nod to the most conservative sectors is clear. Every light blue handkerchief is against the discarding of embryos, therefore, this debate is very similar to the debate that took place with the IVE”, Lamm determines. Then he continues: “Holding a public hearing on this to hear all those arguments again does not make sense. In this case, not even a person’s body is at stake. I wonder: will this set of cryopreserved cells, then, have a greater legal entity than the fetus already implanted in the body of a person?
The Court could have issued a sentence in order to order the National Congress to enact a special law for embryos, but that was not the path chosen by the high magistrates. Because? Because, as Herrera says, the Court is made up of people who have a clear political position and “a covert strategy.” “I think that the Court wants to establish itself with the church and with the business sector. There are already rumors. It goes wrong for us and there will be problems because what they are looking for is to invert the logic: if the embryo were considered a person, how much more will the 14-week fetuses be. They seek to discredit the abortion law. No need to review it again”, Herrera closes.
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