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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22680
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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There. My question is an emotive legal question. I have

Customer Question

Hi there. My question is an emotive legal question. I have a frozen embryo left after IVF treatment that I would strongly consider donating to another childless woman / couple as I have already got 2 children that I am raising on my own. However as I have used a sperm donor I have been told it is "not permissive" to donate. The short answer to the query of 'why' that I received is that you can't donate a donation and that it was deemed in the potential childs best interest. Also that both biological parents have to give permission. The piece of legislation in question is the Hart Act (?)2004 but I'm not sure if that is an interpretation of the act by the fertility clinics ethics committee or if it is specifically stated as that within the law. My challenge to this is that 1) surely the sperm donor has already consented when he gave up all rights to any children which then means 2 biological 'donor' consents are obtainable, 2) there are potentially hundreds of embryos in this position either through single parents or couples that have had to utilise the incredible generosity of donors to achieve their parenthood dreams and at the same time an increasing number of people seeking fertility treatment 3) what is the difference ethically or legally for this child donated in this circumstance compared to any other donated embryo or even any other adopted child. Each still has 2 biological parents to find and meet, although this would be streamlined within the fertility clinic situation. 4) This outwardly appears to have some type of bias against the embryos or parent/s of these embryos. We only have two choices in their fate--use or dispose, while all the other embryos where both parents are known (ie married couple) have three--being able to donate as well. Is this not a human rights issue too? I appreciate the embryo isn't legally considered 'human' as yet but this causes a large amount of emotional angst for the parent/s of these potential children. And we certainly are human. When ever I see the fertility clinic advertising for these frozen embryos to be donated to childless couples / individuals I immediately wonder why mine isn't good enough. I love my embryo, and can not easily dispose of it, it feels morally wrong and I didn't go through all I went through just to throw my babies away at the end. Therefore I face a third pregnancy and baby at the age of 45 to raise on my own. I accept it was my choice to do IVF and accept all the good and any complications that come with that. But I can't help but think its not the responsible thing to do. I will probably need increased financial assistance and there will be increased family stress while at the same time I may have been able to give the gift of a child to another family. They could be raised in better financial circumstance and with more parental attention dedicated to them, plus they may have a better chance of life within a younger womb with lower miscarriage risk than my own. I look forward to your interpretation. Thanks Coral Tamblin
Submitted: 2 years ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 2 years ago.
The problem is that New Zealand law has not properly answered many of the issues resulting from in vitro fertilisation. The embryo has no legal status under New Zealand statute law, and therefore the fertility clinics are operating under ethical codes which they have drafted and adopted rather than binding law in an act of parliament. The relevant act is the Human Assisted Reproductive Technology Act 2004. This provides that ethics committees would have the power to permit or refuse the use of your embryo and therefore while the act gives them the power, its doesnt actually say anything more about how they decide. So in your case it would the clinic ethics committee who has made these rules. So challenging their decision is the remedy, and this is where the law would find some challenges. There are ethical questions (which frankly are very difficult as you know) and legal issues. To challenge the ethics committee would likely need a judicial review hearing unless you could successfully negotiate a donation, with their consent. They will have records of the sperm donor, and could I assume obtain consent to the donation. How hard have you pushed the clinic so far?
Customer: replied 2 years ago.
I'd been told by the counsiller and nurses in an off handed way that they didn't think it was possible at the time of the IVF, but once my 2nd child was born healthy then of course it became more of an issue. I sent a letter to the legal representative of Fertility Associate for clarification of that and requested the specific piece of legislation stating that to help my decision. It was handed on to the counsiller who replied that it was not permissive to further donate due to the possible impact on the child, and then focused on ways to feel better about disposing of them. She did not specifiy that it was specific legislation or ethics committee. Kind of side stepped it. But made it very clear it couldn't be done. Thats why I thought I'd enquire elsewhere to get an objective view before re-approaching it. Do you suggest a direct communication to the ethics committee?
Expert:  Chris The Lawyer replied 2 years ago.
I think you need to go past the staff and ask the Ethics Committee directly. Staff probably don't know the details, and may have their own views which are not necessarily the legal position
Customer: replied 2 years ago.
Thank you. I believe the Counsiller would be well versed in their rules but do not know if she sits on the ethics committee or any of the other members. Obviously she is only in a postion to recite their findings. I think I will start with a letter directly to the committee detailing what I said in my first e-mail to you. I do not think that they should blindly pass a judgement like this without knowing each individual case. Ethically it could be viewed as wrong to force a person into a pregnancy when they feel they have no other option available if disposal is abhorrant to them (ie; feels like abortion). Can you advise me the specific part/s of the HART Act that may support my discussion with them?
Expert:  Chris The Lawyer replied 2 years ago.
A link to the act is here, so you can copy this into your browser to look at- http://www.legislation.govt.nz/act/public/2004/0092/latest/DLM319241.html#DLM319343This is the basic relevant section, and how the decisions are made- Matters to be considered and decided by ethics committee18Applications for approval(1)The ethics committee may receive a written application for an approval for an assisted reproductive procedure or for human reproductive research if the application—(a)is in a form approved by the ethics committee; and(b)describes the activity for which approval is sought; and(c)states the purpose of the proposed activity; and(d)nominates an appropriate person who is to be responsible for the activity.(2)If the kind of activity for which an approval is sought is not covered in guidelines or advice issued or given by the advisory committee, the ethics committee must—(a)decline the application; and(b)refer the application to the advisory committee.(3)The ethics committee may, for any reason that it considers appropriate, reconsider an application that it has previously declined if relevant new information becomes available.
Customer: replied 2 years ago.
Thanks again for that. I note that its the Advisory Committee that seems to have the main control over these issues. Their advice is meant to be public information so I wonder if gaining that would be beneficial also. If I get no joy from the ethics committee is it therefore worth going upstream and communicate to them?
Expert:  Chris The Lawyer replied 2 years ago.
You should be able to get full information from the advisory committee as they are subject to the Official Information Act, but i would think they would provide any guidelines freely anyway
Customer: replied 2 years ago.
Thanks so much for your advice. I will write my letter to the ethics committee and send it away shortly. I need to plan for embryo return in Oct Nov if I can't find another solution to my quandry. Its a tricky one and I don't feel its been given the thought it deserves or consideration to the parents. What is bizarre is I could legally put the child up for adoption after its birth. I don't believe I could emotionally but legally I could. And would the child be in any different situation? And again I wonder what the human rights implications are here for the parents. It could almost be viewed as enforced abortions for some people who have no choice and are unable to use their embryos. (poor finances, no support, poor heatlh). I am lucky in that it is only one embryo but if I had more embryos then that would complicate things terribly.
Thanks again - Coral Tamblin
Expert:  Chris The Lawyer replied 2 years ago.
A difficult question indeed and I hope they are more helpful.
Customer: replied 2 years ago.
I can but try. Many thanks. :-)
Expert:  Chris The Lawyer replied 2 years ago.
I hope they listen and understand!
Customer: replied 2 years ago.
I have written a letter focusing on my desire to donate my embryo for health reasons, for the best chance of my embryo, in respect of the gift my original donor gave, for consideration of all the childless people waiting for such a chance. I discussed the impact to the potential child essentialy being the same as for any other donated embryo and even adopted child...still having 2 biological parents to find. In fact I felt that potentially it would be less likely to have bad emotion for them to encounter. After all in a country with 50% divorce rate you can not guarantee that the couple that donated would still be together 18 years later. I tried not to be defensive.... rather factual and caring. Of course this is new territory and I find it interesting that an ethics committee has this power over everyday peoples tissue. Ethics committees are usually about research. Who can and can't and whether it is appropriate. This is actually meddling. The law doesn't require a woman wanting an abortion to get the biological fathers consent...or even his opinion. Thee is little consistency between the various laws governing who owns an embryo....in-utero or in-cryopreservation. We shall see what my response is. I don't know when they meet next but I have given myself 6 mths before I decide to put my embryo back, so hopefully they meet before then and communicate with me. Thanks again. -Coral
Expert:  Chris The Lawyer replied 2 years ago.
Let me know the response. It's one of the more difficult issues I have seen on this site, and in my law practice.

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