Ludmila moscato
09/03/2021 6:00 AM
Clarín.com
Good Life
Updated 09/03/2021 6:00 AM
A couple who need to cryopreserve embryos in order to conceive goes to a fertilization clinic.
The process is successful, they can transfer an embryo and become parents.
But to achieve that pregnancy, 7 embryos were created.
What about the
remaining 6
?
This is one of the many possible scenarios resulting from assisted fertilization techniques.
But
there are many others
: "abnormal" embryos that would not resist a pregnancy and whose development is not viable, couples who do not want more children, or who separate, or who conceived by other means.
What is usually common is the result: law 26862, which guarantees accessibility to these techniques, contemplates their creation
but not their possible outcomes
, so these embryos are in many cases in a state of abandonment.
While many couples
stop paying for their maintenance,
the clinics continue to cryopreserve them because - despite the fact that couples have not claimed them for decades - that the cessation of the process implies lawsuits.
The number of cryopreserved embryos increases over the years: while 54,432 had been reported in 2017, in 2020 there are 91,724.
And of that figure, more than 23,000
are over 10 years old
(25.8 percent), according to a survey based on data from Argentine breeding centers published in
Fertility and Sterility.
The decision of what to do with embryos that will not be used is overwhelming for many couples.
Photo Shutterstock.
The causes of this phenomenon are many and its analysis is
multidimensional
: both psychological factors (couples who cannot resolve the issue and put the issue on hold indefinitely), as well as unclear laws in this regard, which leave room for judicial interpretations where no
ethics and religion
are left out
.
In between, various attempts to
regulate the fate of these embryos
were presented in Congress, but so far none have succeeded.
Today, having approved the law of Voluntary Interruption of Pregnancy (IVE) in the country, both clinics and couples and many sectors of justice
hope that the way is paved
for a new version to prosper and to be able to operate with clear rules.
Legal Dimes and Tells
“Without a law
we all lose
”, sums up Marisa Herrera, doctor in Law, specialist in Family Law and researcher at Conicet.
His voice is quite suitable: one of the laws that allude laterally to this situation is the new Civil and Commercial Code (in whose writing he participated), and then he was the promoter of
two bills
(one of them lost parliamentary status) that seek clarify the paths of the non-implanted embryo, which are not clear in Law 26862, where the issue is alluded to but not resolved.
"We have had rulings with cases of couples in which the
center refuses to stop cryopreservation
and indicates that they will only do so if they present a prior judicial resolution where it is authorized," he says.
"But the judges - he continues - add a little paragraph to them where it says something like 'Appoint to Congress so that you know that there is still legislative material that corresponds to you, so that I do not continue to have to resolve this type of conflict'" , Herrera exemplifies.
In reality and in fact, Herrera maintains that today
the conditions would be in place
to proceed with the cessation of cryopreservation in the event that the couple decides that they do not want to use the vitrified embryos.
"Who can do more, can do less", would be the principle that would govern its legality.
“Having approved the
abortion law, it
is evident that the coherent interpretation is that if at 14 weeks I can decide by my will to abort, that is, the will of the person was prioritized, you can imagine what happens in a stage prior to that ", suggests the doctor in Law, referring to the status of non-implanted embryos.
The professional also alludes to a ruling that would endorse her cessation, in order to prevent the embryos from remaining
for an indefinite time
in a cryopreservation state: "Before the IVE it could also be done, because we have the famous Artavia Murillo ruling which is a Judgment of the Inter-American Court of Human Rights that is obligatory for those of us who ratify the American Convention, "he maintains.
Although it clarifies that the new bill presented this year to
make the issue visible again
would serve "even for those who consider that international treaties would not be operative unless they are against that same country", referring to the aforementioned ruling that ultimately considers that an unimplanted embryo is not a person.
The legal status of the non-implanted embryo
"The issue must be approached with a
multidimensional analysis
, because on the one hand there is the legal consideration of the status of the embryo that some consider it cells that have not even reached a differentiation, and others on the other hand believe that it is a person", analyzes Romina Pesce, Head of the Reproduction Section of the Italian Hospital and member of the Argentine Society of Reproductive Medicine.
In this sense, Herrera points out: “The issue really is what
legal consequences it
has, you can call it whatever you want, but I ask myself: blood, organs, stem cells, what are they legally?
It does not matter, the issue is what they generate ", he reflects.
"Can I put up a blood kiosk today? No, because it has special protection. But is it a thing or is it a person? What matters is what I can and cannot do about it. Because it seems that the only important thing is whether he is a person or he is not a person, but I don't care about the binary logic 'person or thing', but rather
what I can do or not,
"he adds.
The psychological dimension
And it is that a clear procedure, with
stipulated deadlines
and that emphasizes prior counseling, would not only help the judges stop being legally adjudicating what the legislation does not stipulate: it would also take a burden off couples.
Nowadays, it is up to those who decide what to do with the embryos, and the options that exist
are not easy to make
from the subjective point of view, in addition to the legal one.
"Some time ago a woman came with this question: 'I have a risky pregnancy, I am not going to have another child because I am 50 years old and I do not see myself at 52 having, another is very soon, what do I do with the embryo that remains ? '
Today there are no limits in this regard and there is another reality: when you deepen the issue with couples, many are not comfortable with
donating to another couple,
for example, "says Pesce.
Fertilization clinics pay for cryopreserved embryos that many couples do not claim.
Photo Shutterstock,
In this sense, Herrera points out: “We did an investigation a few years ago for a project between the UBA and the Conicet in which it is seen that when you ask people who are not in treatment they say 'I would donate them so that another couple it can be a mother or father ', but when you ask people who are in treatment and have embryos,
they would not donate them,
”he says.
Therefore, both emphasize
prior advice,
and that this issue is raised even before cryopreserving.
And that is precisely one of the points of the law.
"We presented this year, again, a bill that we had already been doing at Conicet with (Daniel) Filmus, led by Mara Brawer, in which we tried to
give clear rules
," reports Herrera.
“For example, if a couple goes to reproduction techniques, they have embryos, the first is transferred, they have a child.
In the middle they separate, so the question is what destiny do they have?
Because they are both embryos, then
before
reproduction techniques that embryo must have a
common destiny
”, he explains.
"The bill clarifies that when they are a couple, both members have to agree previously for a coincident destination, to avoid subsequent conflicts, because the destinations can be:
the cessation of cryopreservation
, donate it to science or third parties, or for themselves, because the main destination is usually for later treatment of the couple ”, he details.
Given the obvious difficulty of thinking about possible destinations in advance, the bill stipulates that
five years of silence
are foreseen
.
If after that time the couple does not manifest anything, the clinic must notify them that this period has elapsed and, if there is no communication, they will be referred for scientific research "for the benefit of the entire community," says Herrera.
Meanwhile, the situation remains in limbo.
"Nowadays, as there are no rules, it is
according to what they agree on
: some continue to pay, but with the pandemic and various economic problems they stopped doing so. There are embryos with more than 20 years of cryopreservation, which not only do not to use nobody, but also with the amount of years probably until they have lost the possibility of developing ", concludes.
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