Freezing or cryo-preservation of excess 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 the patient feeling confused and disempowered

SOUTH AFRICAN LEGAL POSITION ON EMBRYO DISPOSAL

South African reproductive laws are in some respects a mishmash of legal provisions and regulations. These laws lag far behind those put in place by more advanced first-world countries,. Especially in the area of embryo disposal. Law and policy offered by western legal frameworks provide a 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.

Nowhere is this guidance more necessary than in respect of the issue of disposal of gametes and embryos.

THE ADVANTAGE OF REFERENCE TO FOREIGN LEGISLATION FOR GUIDANCE ON THE DISPOSAL OF EMBRYOS & GAMETES

Reference to foreign laws and case law provides substantial information in this area of disposal of embryos and gametes. In particular in respect of the issues of :

• Who is competent to decide on the disposal of embryos and gametes?
• What time frames are applicable to the disposal of embryos and gametes?
• What procedures must be followed prior to the disposal of embryos and gametes?

THE NATIONAL HEALTH ACT 61 of 2003 AND EMBRYO DISPOSAL

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 of what is intended by the use of the word “unclaimed”. In its literal interpretation, the word would reflect an embryo that has not been utilized by the recipient. Additionally, the Regulation does not make it clear whether extension beyond the ten-year period is permitted so that embryo disposal can be avoided at the request of the owners thereof. 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.

FIXED-TERM STORAGE PERIOD OF EMBRYOS

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 of embryos? What (if any) is the procedure for extension of the time frame to avoid unnecessary disposal of embryos? 

It is asserted that the reason here for a fixed-time period is to protect fertility clinics from the burden of indefinite storage of embryos. Particularly in cases where the providers 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. The clinic would need to ensure that patients are properly informed as to embryo disposal time periods. Clinics would also need to ensure that, sufficient time is given to the patient should they wish to bring a legislative or constitutional challenge prior to the automatic disposal of the embryos by the Clinic.

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 “ownership” rights over the embryo prior to its disposal, alternatively of a contractual co-owner requiring directive of what is to be done to the embryo in the face of uncertainty or a contrary position being adopted thereon by the other co-owner .