The debate on the fate of cryopreserved embryos in the Constitutional Court

Diana Rocío Bernal Camargo and Ana Isabel Gómez Córdoba

Directors of the Specialization in health medical law and of the Master’s Degree in Biolaw and Bioethics from Faculty of Jurisprudence of the Universidad del Rosario

Since the so-called first Colombian “test tube baby” in 1986, questions related to assisted human procreation techniques and their impact on the Colombian social context have been raised over the years. The ethical and legal dilemmas of these techniques have given rise to an interesting constitutional jurisprudence on conflicting rights, especially given the persistence of a regulatory vacuum.

The Constitutional Court has had the opportunity to refer, among others, to issues on: (i) financing for access to in vitro fertilization treatments, unifying exceptional criteria through Judgment SU-074 of 2020; (ii) Informed consent in cases of in vitro fertilization (Sentence T-375/16); (iii) Preimplantation genetic diagnosis (Sentence T-831/15); (iv) Surrogate pregnancy (Sentence T-968/09) and (v) the disposal of cryopreserved embryos, which is precisely the subject dealt with in the recent judgment of the Court (T-357 of 2022)which we will deal with in this article.

The case

Sara, a 46-year-old woman with a diagnosis of an endometrial polyp and a bilateral tubal obstruction goes -with her partner- to undergo an in vitro fertilization process. A document of “informed consent for in vitro fertilization/OWN ICSI-own semen” and another “informed consent for embryo vitrification” are signed. This last document included the following clause: “In case of separation or divorce of the couple, the fate of the cryopreserved embryos will be determined by the mother”. As a consequence of the treatment, an embryo suitable for transfer is obtained; nevertheless, during the process, the couple is separated before the transfer. Carlos, Sara’s ex-partner, moved his residence to the US and told the doctor that he had withdrawn his consent to continue with the procedure. The doctor stops the implantation phase seeking an agreement between them, but Sara goes to the constitutional judge in defense of her rights and those of her “son”. In the guardianship action, she invokes the protection of the right to health in connection with sexual and reproductive rights, rights to the family, human dignity, self-determination and freedom of conscience and requests that the implantation of the cryopreserved embryo be ordered. .

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The judgment of the Court and the legal and bioethical problems raised

The central problem posed by the Court was to determine whether the doctor and Carlos “disregarded Sara’s fundamental rights, particularly the right to reproductive self-determination, by refusing to implant the pre-embryo whose formation she attended with Carlos, alleging that the latter revoked his consent” and the impact of the decision -which was indeed favorable for Sara- in matters of filiation. However, the case additionally raises a series of bioethical questions that deserve special reflections.

Regarding the rights raised, which the Court protects, it is interesting to highlight: on the one hand, it resolves the case from a gender perspective, taking into consideration that access to and use of procreation techniques are part of sexual and reproductive rights ( sexual and reproductive health) and, on the other hand, that it is by virtue of the provision on these rights that “agreements” can be entered into, including the fate of cryopreserved embryos. However, the Court makes it clear that the case raises ethical and medical questions that must be debated in other settings in order to build a regulation on the matter. Despite having been raised in the technical concepts and reports sent, the Court does not address these dilemmas nor does it intend to create a standard for this type of procedure.

In addition to the protection in favor of the sexual and reproductive rights of women -as part of the gender approach-, the Court indicates that the donor must be allowed to assume filiation or not, and in case of not assuming it, it would apply the figure of anonymous donor.

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This approach is fundamental in the review of guardianship, although it is necessary to point out that the recognition of informed consent as an autonomous right is missed, that it is not limited to the mere formality of a document and that, as such, different standards apply to it. those that may apply to civil or commercial contracts, especially because the high court in the case under analysis does not recognize the right to revoke consent, as an individual can do in all health situations, as we have indicated in the concept sent from the direction of the Specialization programs in Medical Sanitary Law and the Master’s Degree in Biolaw and Bioethics of the Faculty of Jurisprudence of the Universidad del Rosario. The exception to revoke consent in cases like this is that, in effect, the person who delivers their biological material (eggs or sperm) does so through irreversible dissociation of the sample or identity data or that the retraction occurs after the procedure. (transfer)

The case is an opportunity for the health institutions that provide these services to review the technical standards in light of ethical principles and the rights of those who attend them. The fact that there is no regulation on assisted human procreation techniques does not mean that there are no applicable ethical standards, such as the consideration of ethical, emotional, psychological and legal risks, which were not included in the case. under study.

Regulatory challenges

As the Constitutional Court notes, it is within the Legislature where the debate must be reopened, which must include, mainly, questions about: (i) access to related health services, complementary to Law 1953 of 2019 and Resolution 228 of 2020; (ii) surrogate uterus; (iii) fate of embryos; (iv) informed consent; (v) contracts associated with these techniques and (vi) new derivative rights.

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The debate on the matter should involve different key actors that focus on guaranteeing the rights to sexual and reproductive health without ignoring the bioethical principles that make these techniques a scenario of confluence of rights, but also of medical practices guided by the the law of art.