Freezing or cryo-preservation of embryos is routine practice in IVF. Disposal of Embryos is on the other hand, a complex issue which if not discussed with the patient may leave them feeling confused and disempowered
South African reproductive laws are in some respects a mish-mash of provisions and regulations. These laws lag far behind those put in place by more advanced first-world countries. Law and policy offered by western legal frameworks provide clear guideline for local medical and legal practitioners :
- needing to operate within the framework provided by the National Health Act and its Regulations, but
- who also wish to avoid many of the difficulties experienced by first world countries in their early encounters with medico-legal and ethical issues raised by advancing reproductive technology.
No where is this guidance more apparent than in respect of the issue of disposal of embryos.
Reference to foreign laws and case-law provide substantial information in this area of disposal of embryos. In particular in respect of the issues of :
- Who is competent to decide on the disposal of embryos ?
- What time frames are applicable to the disposal of embryo ?
- What procedures must be followed prior to the disposal of embryos ?
According to Regulation 10(2)(d) of the Regulations to the National Health Act 61 of 2003 :
A competent person (namely the fertility specialist and or fertility clinic as defined in the regulations) is required to destroy an embryo that has been unclaimed by a recipient for a period of ten years.
The Regulations do not provide any definition on what is intended by use of the word “unclaimed”. In its literal interpretation, the word would reflect an embryo that has not been utilized by the recipient. Additionally and more lamentably, the Regulation does not make it clear whether extension beyond the ten year period is permitted. This provision, unlike the guidelines provided by the UK Human Fertilization & Embryology Authority (HFEA) which permits extensions to these time limits in cases of actual and anticipated premature infertility, fails to consider fertility decline.
On another note, scientific evidence abounds that there is no risk of harm to gametes or embryos through extended storage. So why then have our legislators (in line with other legal frameworks) opted for a fixed-term storage period?
It is asserted that the reason herefor is more than likely to protect fertility clinics from the burden of indefinite storage of gametes and embryos. Particularly in cases where the providers thereof have disappeared and their whereabouts are no longer known to the Fertility Clinic. Whilst this is laudable, it nonetheless places an added duty on the Clinic to ensure that patients are properly informed as to disposal time periods, so that should legislative or constitutional challenge hereof be required by them, sufficient time is still available to do so prior to automatic disposal.
As a general rule then, Fertility Clinics should ideally engage in annual communication with the patient/patients.
- Reminding them in the communication that they are holding embryo in storage ; and
- Requesting written directive regarding what the patient requires to be done with the embryo.
Ensuring proper and informed consent at the time of storage together with the Fertility Clinic sending out timeous communication regarding a patient’s wishes viz the disposal of the embryo will also serve to protect the Clinic in the event of the male gamete provider of the embryo requiring legal adjudication of his rights over the embryo prior to its disposal.