Consistency is crucial for ACART guidelines
Proposed guidelines on extending storage of human in vitro gametes and embryos should be consistent with the purpose and principles of the Human Assisted Reproductive Technology Act 2004.
It is also important that the proposed guidelines are not so prescriptive as to exclude the exercise of discretion by the Ethics Committee on Assisted Reproductive Technology (ECART) when it decides individual applications.
This is the advice of the New Zealand Law Society to the Advisory Committee on Assisted Reproductive Technology (ACART) in comments on ACART’s Proposed Guidelines on Extending the Storage Period of Gametes and Embryos – Consultation Document.
The Act empowers ACART to issue guidelines and give advice on the matters that the Ethics Committee must take into account in considering applications for extending the storage period for gametes or embryos.
The proposed guideline limiting who may making an application for extended storage exceeds ACART’s legal powers according to the Law Society.
“The Act does not place restrictions on who may apply for extended storage of gametes and embryos,” it says. “ACART’s power to issue guidelines in relation to applications for extended storage is limited to ‘the matters that the ethics committee must take into account in considering…’ an application for extended storage. This does not extend to rules restricting who has standing to make an application.”
The requirements for giving informed consent to extended storage risk being overly prescriptive. Requiring the consent of parents or guardians for children under 16 is “too vague, and too restrictive”. It is not clear what combination of parents and guardians is required to give consent. It is also too restrictive because it departs from the approach in the Care of Children Act 2004, which says parents/guardians “may” consent, and fails to take into account the common law capacity of minors to consent to medical procedures.
The proposed maximum periods for extending the storage of gametes and embryos, depending on the age of the patient and the reasons for storage, may not be consistent with the purpose and principles of the Act.
“There is a real risk that there is no legal basis for prescribing a maximum extension period to 35 years of age. This is an arbitrary cut-off point and the age limit may constitute unlawful discrimination on the ground of age under the Human Rights Act 1993”, says the Society.
The Law Society’s comments will be taken into account when ACART finalises the proposed guidelines, before consulting with the Minister of Health. The Society’s submission is publicly available here.