Storage of gametes and embryos

Introduction

Gametes (sperm and eggs) and embryos are seen by many as being different to other human tissue. This is because they have the potential to lead to human life. As such, issues arise regarding the storage of gametes and embryos, as well as their use and disposal.

For example, a person or couple may feel very strongly about embryos created for them during treatment. They may prefer to have them stored until they can be donated to another couple.

On the other hand, the storage and then subsequent use after many years of gametes or embryos may impact upon any child born as a result.

Gametes and embryos can generally only be stored for a certain period of time before they must be disposed of.

Ethical and legal requirements concerning the storage, use and disposal of gametes and embryos are further detailed below.

Consent

Couple - consent discussion
Informed consent by the person or people whose sperm, eggs and or embryos are to be stored, used and or later disposed of, is important.

The Law

The legal requirements for consent set out in the Health Law Central ‘Consent‘ section apply to decisions regarding such sperm, eggs and embryos too. Clinics in all states and territories must make sure that sufficient information is provided to people, and that they are able to make free and informed decisions about their gametes and embryos. Some states also have specific laws concerning consent requirements regarding the storage, use and or disposal of embryos and/or gametes.

Victoria

In Victoria, the Assisted Reproductive Treatment Act 2008 (Vic) makes it an offence for a clinic to continue to store gametes if the gamete provider has asked for their removal from storage. 1 Gametes may be stored for a maximum of 10 years. 2

In relation to embryos, the Assisted Reproductive Treatment Act 2008 (Vic) provides that embryos may not be stored unless the person who will store the embryos is a registered ART provider, the embryos are intended for use in a treatment procedure, and the persons who have produced the gametes from which the embryo was formed have consented, in writing, to the embryos storage for the purpose of its later transfer. 3 Penalties of up to 240 penalty units (approximately AU$41000) or 2 years in prison may be imposed if these conditions are not met. Embryos may be stored for a maximum period of 10 years, 4 however this period may be extended with the approval of the Patient Review Panel. 5

New South Wales

In New South Wales, an ART provider must not store a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent. 6 Contravention of this provision may be subject to a maximum penalty of 800 penalty units (approximately $136000) in the case of a corporation, or 400 penalty units (approximately $68000) in any other case.

Gametes collected after 2010 may be stored for a maximum period of 15 years. Similarly, embryos created after 2010 may be stored for a maximum period of 15 years. 7

Western Australia

In Western Australia gametes may be stored for a maximum period of 15 years, but consent must be renewed every 5 years. 8

Embryos may be stored for a maximum period of 10 years. 9 This period may be extended with the approval of the Reproductive Technology Council. 10

In Western Australia, the Human Reproductive Technology Act 1991 (WA) provides that when a couple disagree about the use or continued storage of a ‘human egg undergoing fertilisation or a human embryo’, storage should be continued unless the storage fees are not paid, the time limit for storage of the egg or embryo has expired or a court order requires alternative arrangements to be made. 11

In all states, generally people must also be notified when the time limit for storage is nearing an end so that necessary consents or instructions may be obtained.

The NHMRC Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research are also relevant regarding informed consent in relation to the storage, use and disposal of gametes and embryos.
The NHMRC Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research

The guidelines provide that individuals and couples responsible for stored gametes or embryos are entitled to certainty about the safety and identity of the gametes or embryos. 12

They further state that ‘decisions about the continued (long term) storage of gametes or embryos involve both personal and clinical considerations. The suitability of gametes or embryos for continued storage is a clinical determination, however, if there is no evidence of deterioration, decisions about the continued storage of gametes or embryos may depend entirely on the personal preferences of the responsible party(ies)’. 13

Gamete and embryo donation

Click on the button below to find out about gamete and embryo donation.

Notes:

  1. Assisted Reproductive Treatment Act 2008 (Vic) s 31(1).
  2. Assisted Reproductive Treatment Act 2008 (Vic) ss 31(1)(b).
  3. Assisted Reproductive Treatment Act 2008 (Vic) s 32(2)
  4. Assisted Reproductive Treatment Act 2008 (Vic) s 33(2)(b)).
  5. Assisted Reproductive Treatment Act 2008 (Vic) s 31(2).
  6. Assisted Reproductive Technology Act 2007 (NSW) s 25.
  7. Note the law was previously that a maximum period of 10 years applied, but the time limit was extend in January 2015. Assisted Reproductive Technology Regulation 2014 as amended by Assisted Reproductive Technology Amendment (Exemptions) Regulation 2015.
  8. Western Australian, Human Reproductive Technology Directions, 30 November 2004, Published by authority of John A. Strijk, Government Printer, State of Western Australia, [6.5].
  9. Human Reproductive Technology Act 1991 (WA) s 24(1).
  10. Human Reproductive Technology Act 1991 (WA) s 24(1a).
  11. Human Reproductive Technology Act 1991 (WA) s 26(2)(a)–(c).
  12. National Health and Medical Research Council, Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2017) [7.1].
  13. ibid [7.2].