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Embryo and Gamete Disposition

What is a Gamete (Sperm/Egg) or Embryo Disposition Agreement?

An Embryo or Gamete Disposition Agreement is a formal legal agreement that can be compared to an ante-nuptial contract, coupled with an advance directive for assisted reproductive treatment (ART) / in vitro fertilisation and fertility preservation treatment.

The Embryo or Gamete Disposition Agreement will regulate what happens to a Recipient or couple’s embryos or gametes, should a specific unintended consequence of life occur. In particular, it will regulate things such as:

1.1. what happens to their embryos or gametes should:

  • the couple get divorced/separated;
  • one or both partners die;
  • one or both become incapacitated and are unable to provide their consent for further treatments;
  • one or both reach the SASREG age limit of 55 years old;
  • a certain pre-agreed period of time elapse without the embryo or gamete being used; or
  • should there be a disagreement relating to any further treatments and the necessary consent of one partner is withdrawn.

1.2. Recording of the number of children that the parties intend having should one of the above events occurs.

Advance directives originated in the context of end-of-life treatment, where people indicate what kind of treatment may be performed when they can no longer decide for themselves. Advance directives, and in the context of ART, Embryo or Gamete Disposition Agreements, are recognised as an extension of the decision making authority of competent patients to indicate what kind of treatment may be performed using any cryopreserved embryos or gametes and are therefore legally enforceable.

An Embryo or Gamete Disposition Agreement is therefore an authoritative instruction given by a legally competent Recipient or couple, regarding the type of treatment and in this case, the disposition of any embryos or gametes, that are cryopreserved and stored at a clinic. This will provide both patients and clinics, and where necessary, the Courts, with authoritative proof of a Recipient’s / couple’s intention and clear directives as to what treatment, if any, is to continue should one of the unintended consequences occur.

It is advised that each and every patient enters into an Embryo or Gamete Disposition Agreement, or similar declaration when either embryos or gametes are cryopreserved, with the intention of future use by the Recipient or couple. This would apply to all future patients and all patients who currently have embryos or gametes cryopreserved at the various clinics. The alternative is to approach the Court for authorisation and this can be both a lengthy and costly journey.

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