Post written by Kendra Medina, LLM candidate 2015, Pace Law School.

As the technology evolves, different techniques for assisted reproduction have developed. The possibility of preserving embryos is now a reality that allows infertile or same sex couples, as well as single or ill individuals, to preserve their gametes for years in order to plan for their reproductive needs. In-vitro fertilization (IVF) and cryopreservation (to freeze embryos) have become the most popular techniques for this purpose all over the world, including Mexico.

The average number of viable embryos transferred into a woman’s uterus on an IVF procedure or cycle is generally not more than three. However, usually there are more embryos produced, which, if not used, are frozen (or cryopreserved). There are no data as to the average number of cryopreserved embryos in Mexico, but the increasing infertility (according to the INEGI – National Institute of Statistics and Geography), has caused more couples and individuals to seek this type of assistance. Therefore, the number of embryos that are cryopreserved has increased.

Consequently, the development in Mexico of specific regulations and guidelines for assisted reproduction providers to follow with respect to the treatment of cryopreserved embryos is of great importance. Most important is the development of rules and principles that the courts can apply when resolving a dispute on the use of cryopreserved embryos between the parties involved when circumstances change (usually due to divorce).

The primary source of law in Mexico, as a civil law jurisdiction, is statutes. Judicial resolutions are also a source of law, since they can constitute case law (known in Mexico as jurisprudencia, which is binding only if it comes from certain courts and in accordance with certain rules), as are the international treaties to which Mexico is a party. However, with respect to cryopreserved embryos and any legal rights over them or any legal protection to which they may be entitled; there is no specific legislation; no case law has been developed in Mexico so far; and, no international treaties on this topic have been ratified. Consequently, it could be useful for Mexico to learn from the experience of other jurisdictions, such as the United States of America (“U.S.”), where the practice of IVF and use of embryo cryopreservation is very common and generalized; and, although there is no consensus among state legislation, robust case law has developed on this topic.

In Mexico, as in the U.S., when a dispute over the use and/or disposition of cryopreserved embryos arises it is mostly within the context of family law (marriage dissolution) or contract law (breach of contract), and usually confined within the limits of state or local law. Therefore, it is necessary to understand how the law has developed in each particular state within the U.S. Likewise, in order to explore the most suitable approach for Mexico —should it develop new legislation on this matter?— it is necessary to ask some basic questions. Is a cryopreserved embryo a person even though it has not developed into a born and alive child? Is it a thing that can be treated as property? Or is it a hybrid of these two concepts?

For purposes of this short essay, I will just summarize the different approaches that the U.S. courts have taken to resolve these disputes. Meagan R. Marolda summarizes these approaches in her article “Ice, Ice, Baby! The Division Of Frozen Embryos At The Time Of Divorce,” 25 Hastings Women’s L.J. 179 (2014):

1. the state statutes (state legislation provides for guidance on how any dispute over frozen embryos should be solved). Just a few jurisdictions have enacted laws on this topic: California, Massachusetts, North Dakota and Louisiana;
2. the contractual approach (agreements to which the infertile couples/individuals must sign at the time of the in-vitro fertilization procedure with respect to the disposition of embryos that are not transferred);
3. the contemporaneous mutual consent approach (all parties involved must reach an agreement at the time that the embryos want to be disposed of, either destroyed or implanted, provided that changes in circumstances may have occurred after the in-vitro fertilization procedure took place, holding any agreements dated thereof not binding), and;
4. the balancing approach (where both, the wishes and the rights of the parties involved are taken into consideration, either to procreate or to not procreate).

Under Mexican law, an individual is recognized to have rights as of the moment of its “conception”. The Mexican Federal Civil Code does not provide more information as to what “conception” should mean and it does not make reference to which specific rights any such individual may be entitled. Moreover, the term “conception” is usually utilized from a religious perspective, but from a mere physiological stand point, it would be as of the moment of “fertilization of an oocyte by a sperm”, that is, the formation of a viable zygote by the union of the male sperm and female ovum. However, the Article 22 of the Mexican Federal Civil Code does provide that an individual is protected under the law, even if unborn, in which case such unborn shall be deemed to have been born for all purposes under the Mexican Federal Civil Code. Although this provision in itself is confusing, it does not make a distinction between a naturally or artificially created embryo for purposes of its entitlement to have rights protected by the law. Furthermore, Article 314 of the Mexican General Health Law, which includes a definition of embryo, does not help making any distinction either. According to this law, an embryo is “the product of the conception as of the time of conception and until the twelfth week”.

The rights to which an embryo may be entitled may vary in the course of time depending on the stage of its development, whether it becomes a viable fetus, a viable born child, a minor, a minor with disabilities, an adult or an adult with disabilities (each of which legal capacities are detailed throughout different provisions of the Mexican Federal Civil Code). The difference among these rights would depend on the legal capacity that such individual may have at any given moment to exercise those rights and, such rights can be identified only on a case by case basis depending on the circumstances, the jurisdiction and the applicable specific legislation.

For example, in half of the States within the Mexican Republic, abortion is not penalized by the local penal codes, regardless of the reason, so long as it is practiced within the first trimester of the pregnancy (which means either the right to live of an embryo outside nor inside the womb and implanted into the uterus, is protected prior such period). Nevertheless, according to Article 1314 of the Mexican Federal Civil Code, any “conceived” individual, even if unborn, has the sufficient capacity to inherit property, so long as it has been conceived (that is, to be an embryo or zygote) at the time of death of the deceased. The contrast of these provisions highlights the potential contradictions that may arise under Mexican law if no specific legislation is available. Additionally, as if the federal law was not confusing enough, Article 337 of the Mexican Federal Civil Code provides that

for legal purposes, a fetus can only be considered to be born if, completely separated from the mother’s womb and if it lives for 24 hours or is presented alive before the Civil Registry. If any of those circumstances are missing, then no one can never claim to have paternity over it.

Does this mean that the provider of the male gamete cannot claim to have any right based on its relationship over a frozen viable embryo because it is not yet a fetus?

In contrast, in the U.S., although there is no federal legislation, there are some relevant state statutes in this regard that have helped the courts to develop case law on this topic. Nevada, for example, provides a definition of an embryo as a

cell or group of cells containing a diploid complement of chromosomes or a group of such cells, not including a gamete, that has the potential to develop into a live born human being if transferred into the body of a woman under conditions in which gestation may be reasonably expected to occur.

That is, there are two kind of embryos: the pre-embryo (the embryo that has not been transferred into a uterus and, therefore, does not yet have the potential to develop into a human being); and, the embryo, which has been transferred and implanted into the uterus of a woman (which has such potential). Interestingly, the State of Louisiana goes further and defines what an in vitro fertilized human ovum is:

A viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person. An in vitro fertilized human ovum that fails to develop further over a thirty-six hour period except when the embryo is in a state of cryopreservation, is considered non-viable and is not considered a juridical person.

I look forward to going into more detail on each of the possible approaches that Mexico should take into consideration when regulating in general the rights over frozen embryos and, in particular, to solve any disputes over them, based on the experience that the U.S. has had so far, which amounts at least forty cases (all of them solved using the different approaches mentioned above) in my academic research paper to be completed in 2015.