The legal nature of a cryopreserved human embryo: a legal comparative analysis

Abstract

Individuals are increasingly seeking recourse in assisted reproductive technologies in an attempt to realise their desire to conceive a child. Reproductive technologies are often used due to an inability or unwillingness to conceive naturally. Although there are multiple assisted reproductive technologies available, this study focuses specifically on in vitro fertilisation. As part of in vitro fertilisation, commissioning parents also have the option to extract and fertilise multiple gametes simultaneously. Such embryos can then be stored for an extended period of time and used at a later stage to improve the chances of achieving pregnancy. However, this scenario has the potential to cause a myriad of legal questions that remains unanswered. Such issues arise especially in instances where commissioning parents seek adjudication of a dispute centred around decision-making authority over their embryos held in cryopreservation. Since the legal nature of the human embryo remains undefined in the South African context, a lacuna is created that needs to be filled as a matter of urgency. This research investigates the legal nature of the human embryo held in cryopreservation by conducting an analysis of the legal nature of the legal subject and the legal object in order to effectively compare the legal nature of the embryo with the characteristics of both these types of entities. Once the characteristics of the legal subject and the legal object have been established, the three most prominent arguments in the debate regarding the legal nature of the embryo are investigated and critiqued. The three arguments include firstly, that the embryo is considered a legal subject from the moment of conception, secondly that the embryo is considered a legal object of the commissioning parents, and finally, that the embryo is neither a legal subject nor a legal object but occupies an interim category as a legal subject sui generis entity. The legislative framework and jurisprudence of the United Kingdom and the United States of America are analysed to assess the current situation in the South African context. Such analyses will be used as the point of departure for identifying potential lessons to be learnt from the legislative frameworks in other jurisdictions to effectively define and regulate the legal position of these entities held in their cryopreserved state. Based on this assessment and on the conclusion that the entity in cryopreservation is neither a legal subject nor a legal object, but a legal subject sui generis, recommendations are made to establish a sufficient legislative framework within South Africa to provide the necessary guidance to courts when a dispute of this nature is brought before it.