Frozen Eggs, Sper and Embryos
In two articles published earlier this year, I considered some of the legal issues involved in surrogacy, and the fact that our local laws have not kept apace with technology. Thanks to the presenters at a law conference I recently attended, I now know that I had only identified the tip of the iceberg, because surrogacy is only one form of assisted reproductive technology (ART).
While there is no single definition of ART, it is said to include "methods used to achieve pregnancy by artificial or partially artificial means". Some forms of ART are surrogacy, assisted insemination, in vitro fertilisation and cryopreservation.
The literature on ART suggests that there are many legal, practical and moral dilemmas affecting all forms of ART, but it is cryopreservation that intrigued me most, because it involves the freezing of eggs, sperm and embryos for future use. Using this form of reproductive technology, it is possible for a child to be born long after its 'parents', the donors of the egg and sperm, have passed away. Given the fact that there are already cryopreserved eggs, sperm and embryos in storage in Jamaica, it will only be a matter of time before our courts are confronted with the several legal issues in respect of which our current legislation provides no direct answers.
Some of the questions are:-
• Who owns the sperm, eggs and embryo after the donor passes away?
• Can they be disposed of under a will?
How will the law treat the donor's wishes as to what should be done with the frozen eggs, sperm and embryo?
• What should happen if the wishes of the deceased donors conflict with those of the beneficiaries of his or her estate?
• Do they become the property of the donor's estate?
• When does life begin, so that one could determine whether the embryo is a person or the property of the estate?
• What of the facility in which the sperm, eggs and embryo are being stored, are they trustees or are they akin to holders of a safety-deposit box?
• Will a child who is conceived after either or both parents have passed away, be entitled to an inheritance from the donor's estate?
If so, should it be limited to children born within the usual gestational period after the death of either parent, or should longer time be considered?
What these issues bring squarely into focus is that the existing laws will need to be amended and perhaps new laws will have to be enacted to address these legal issues. In the meantime, however, the slow pace of legislative reform does not mean that attorneys-at-law can avoid having to advise their clients on the legal issues related to cryopreservation and other forms of assisted reproductive technology.
For now, great care must be taken in giving that advice so that it reflects the guidance available under the existing laws.
There are many variations in terms of the legislative response to the use of cryopreservation to assist in posthumous reproduction. Some countries have enacted legislation to specifically prohibit it. In other countries, some limited time period is prescribed so that conception must be within one year after the death of the donor or, in others, the written permission of the deceased will suffice.
The direction our legislators will take is uncertain, but it will be important for several options to be explored so that the one that is best suited for our society is chosen, bearing in mind that the welfare of the child must remain the paramount consideration.