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Research Article

Cryopreservation of human embryos in an in-vitro fertilisation procedure: the need for a legal framework in Nigeria

[version 1; peer review: 1 not approved]
PUBLISHED 30 May 2023
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Abstract

Background: The opportunity to completely ‘stop biological time’ using cryopreservation, as it is used in embryo cryopreservation, provides for the selection and long-term storage of high-quality preimplantation embryos for future usage. While this is a beneficial medical procedure, it has however posed some legal issues such as the legal status of an embryo, ownership of the embryo, reproductive autonomy, posthumous reproduction, surrogacy, and the required storage period for embryos. The ethical debate has been around what to do with surplus frozen human embryos, such as donation, adoption, and destruction of embryos. The aim of this research is to assess the need for a legal framework regarding cryopreservation of human embryos.
Methods: The objectives are to examine and analyze the legal and ethical implications of the cryopreservation process of human embryos in an in-vitro fertilization procedure to identify the shortcomings of the 2016 Assisted Reproductive Technology Bill. This is legal research and adopts the doctrinal method of research, using both the primary and secondary sources of information. The primary sources include legislation, international instruments and case laws; the secondary sources include textbooks and journal articles. The doctrinal approach was employed to describe and analyse the legal and ethical issues relating to cryopreservation in Nigeria, focused on the analysis of legal principles available in Nigeria in relation to cryopreservation of human embryos.
Results: This study finds that there are no laws on assisted reproductive technology regulating the cryopreservation of human embryos in an in-vitro fertilisation procedure in Nigeria. The study concludes that the lack of a legal framework on assisted reproductive technology in Nigeria is the major issue that has left the legal and ethical issues without direction.
Conclusions: This work recommends the need for a legal framework for ART in Nigeria and a review of the Assisted Reproductive Technology Bill 2016.

Keywords

Infertility, cryopreservation, human embryos, assisted reproductive technology, in-vitro fertilisation.

Introduction

The expectation of pregnancy or parenthood after marriage or after a specific period of relationship has been met with infertility challenges as some couples have not been able to conceive nor even carry a pregnancy to term. Couples have challenges conceiving as a result of medical challenges or other associated factors and this causes sadness, depression, or even divorce. Infertility affects millions of people around the world who are of reproductive age and affects their families and communities, it is estimated that between 48 million couples and 186 million people worldwide suffer from infertility.1

In response to these infertility challenges, the recent development in medicine and technology help provide an alternative to natural conception. This innovation is referred to as assisted reproductive technology in which in-vitro fertilisation (IVF) was developed to help infertile couples conceive with the help of medical advancement. Couples dealing with infertility are faced with family pressure, societal pressures, and religious pressures as a result of their inability to conceive. This has however increased the desire and growth of assisted reproductive technology amongst these individuals. The opportunity to completely ‘stop biological time’ using cryopreservation, as it is used in embryo cryopreservation, provides for the selection and long-term storage of high-quality preimplantation embryos that are surplus is required for fresh transfer in an IVF procedure.2 The benefit of freezing embryos if IVF doesn’t work is that the couple can try transferring at least once, if not more, without having to undergo additional infertility treatments. On the other side, if the first attempt is successful, the couple can keep the frozen embryos and use them if they decide to have more children in the future.3

As beneficial as cryopreservation of human embryos are in an IVF process. In Nigeria, it appears that the law is silent on assisted reproductive technology and the procedures employed under in-vitro fertilisation, there is an absence of legal framework or regulations to determine if the practice of cryopreservation is lawful or illegal in Nigeria. In Nigeria, the National Health Act4 forbids the import, export, and alteration of any genetic material, as well as the use of human zygotes or embryos. Additionally, the legislation forbids any action, such as nuclear transfer or embryo division for human cloning. Anyone found guilty of violating one of these rules faces a mandatory minimum sentence of five years in jail without the possibility of a reduced sentence.5 However, there are currently two bills before the National Assembly, the National Health Act (Amendment) Bill 2016 and the Assisted Reproductive Technology Bill 2016 (ART). These bills both passed the second reading in 2017, but they now seem to have been abandoned. The Assisted Reproductive Technology Bill 2016 would have provided a proper legal and supervisory framework for cryopreservation, duration of storage, and the pre-implantation genetic diagnosis which would have included the process by which an IVF embryo is checked for certain illnesses before being transferred, which would have averted the birth of children with various genetic abnormalities such as sickle cell anaemia, Down syndrome, Huntington’s disease, Alzheimer’s, and muscular dystrophy. Based on the issues identified, this study will be looking into why infertile couples in Nigeria would attempt to preserve or freeze their embryos in an in-vitro fertilisation process. This study would as well look into the possible reasons for the absence of laws and rules in Nigeria.

Cryopreservation of embryos

One of the areas of medicine that have advanced the fastest over the past few decades is assisted reproductive technologies (ART). Numerous studies have been conducted in this field because they are the primary way of fertility treatment.6 Cryopreservation of embryos is a crucial component of assisted reproduction. The storage of gametes (sperm and oocytes), embryos, and reproductive tissues (ovarian and testicular tissues) for use in assisted reproductive techniques is included in the field of fertility cryopreservation, which is vital to reproductive science.7 We are now able to retain cells and tissues by freezing them to incredibly low temperatures, such as 195.79°C, as cryopreservation techniques progress (the boiling point of liquid nitrogen).8 There are two procedures used in cryopreservation and they include vitrification and slow freezing, When exposed to liquid nitrogen, vitrification converts biological material and the liquid solution surrounding it into an amorphous glass-like solid that is devoid of any crystalline structures.9 Cryoprotectants are necessary for vitrification at much higher quantities. However, they could have toxic and osmotic effects.10 Traditional cryopreservation methods like slow freezing rely on cryoprotective agents (CPA) that aren’t very concentrated and a slow chilling pace to reduce cell/tissue toxicity while leaving room for ice formation.11 These cryopreserved embryos are stored for future usage either for procreation, donation for research or for implantation at a different time.

The purpose of cryopreservation of the human embryo process in an in-vitro fertilisation procedure

Cryopreservation of human embryos has made it possible for couples to explore IVF options while still having their embryos saved in case, they want to have more children or if the implanted embryo doesn’t survive in the womb. This procedure has made it possible for individuals or couples to become pregnant at a later time due to infertility issues. Other women who lack the ability to make eggs or who have a hereditary condition have the option to receive donated embryos thanks to cryopreservation.12 Age-related changes in gender, infertility treatment damages, gender transitioning, preimplantation genetic testing, and ovarian hyperstimulation syndrome are among the reasons why some people choose to have this surgery.

The legal and ethical implications of cryopreserved human embryos in an in-vitro fertilisation procedure

This study will discuss the legal and ethical issues surrounding the cryopreservation of human embryos during an IVF procedure, including the embryo’s ownership status and legal standing, reproductive autonomy, posthumous reproduction, surrogacy, and the required storage period for embryos.

The legal status of a human embryo

The human embryo is not regarded as a person and is not required to be treated as such by any legal standard; persons only join the legal system after birth.13 Nonetheless, this does not imply that a human embryo is completely unprotected by the law.14 Legal academics and jurists have currently believe that there are only three classifications that frozen embryos can fit into: (1) property, (2) early human life, or (3) an entity possessing an interim state.15 The embryo needs to be preserved even though it has no rights and is not a person because it could one day develop into a person or another unique thing.16 Concerning human embryos, we will behave differently depending on the perspective we adopt, either treating them as things or as people.17

Embryo as a person

A human embryo is a fully developed, living individual of the human species, unlike other sorts of animal organisms like a dog or cat, parts of a cell in an organism like the heart, kidneys, or skin or an unorganized accumulation of cells waiting to undergo some sort of miraculous metamorphosis.18 There are three important characteristics of the human embryo: To begin with, the embryo is fundamentally distinct from any cell of the mother or father from the moment it is formed; the embryo is human because it possesses genetic traits unique to humans, which is the second reason; and perhaps most significantly, the embryo is a whole, mature, and full-grown organism.19 The argument that a cryopreserved embryo also qualifies as an unborn child under this definition is that it is the product of conception and is in a stage of development prior to live birth.20

Frozen embryos as property

If the frozen embryo is seen as nothing more than property, the owners of this undeveloped property would have the same rights that they would have if they had purchased a couch, automobile, or beach chair, as the frozen embryo is to be viewed as chattel, a transportable object of personal property. several options for what to do with the embryos, including trading, selling, and discarding, in the event that the embryos are converted, a third party may be held accountable for the embryos’ fair market value.21

The frozen embryo as an entity deserving respect

The majority of critics and courts favour a conceptual compromise between treating the frozen embryo as a human person and treating it as simply property, if only in theory.22 The frozen embryo, according to the majority, is a being “entitled to special respect” since it represents potential life.23 Defining respect in this situation, though, is challenging. The distinction between a human embryo and the ethical dilemmas are not any clearer since it is a potential person, a project of a person, or a human being in development. unclear whether embryos should be viewed as things or as potential individuals.24

The Nigerian judiciary has not been able to test the waters regarding human embryo cryopreservation in relation to the use of assisted reproduction Because of this, the Nigerian judiciary has been unable to define what a human embryo is when its life first begins. Nevertheless, this work would assume that the Nigerian court could define a human embryo as a person or potential being by taking into account public policy and the citizens’ value for life and family.

Ownership of the embryo

When a human embryo is viewed as a piece of property, ownership of the said embryo becomes a legal matter, and the owner has the ultimate right to decide what will happen to the cryopreserved human embryo, to become an embryo, an egg needs to be fertilized outside of a woman’s body. Embryo using procedures like IVF, Zygote Intra-Fallopian Transfer (ZIFT), and Intra-Cytoplasmic Sperm Injection. In the case that there are surplus embryos, which frequently occur with IVF, excess embryos are frequently cryopreserved in accordance with.25,26

Binding agreements between parties

In the event of divorce, illness, death, or other altering circumstances, enforceable agreements shall be made to specify the intended use and disposition of the embryos should be signed before the development of the embryos.27 Even though these contracts help set expectations and settle conflicts over ownership of embryos, they might create legal confusion because they are still governed by state laws and judicial precedents.

State statutes

Public policy also forbids the purposeful destruction of the embryo due to the state’s limits on abortion, as a result, if a couple gives up their claim to the embryo, it must be made available for donation.28 Many conflicts are likely to be settled through litigation because there aren’t many state laws that expressly cover frozen embryos and because there aren’t any comprehensive laws in place. Currently, there is no legal regime regulating freezing of embryos in Nigeria, which is a gap this current study intends to fill by suggesting the need towards a legal framework for the cryopreservation of human embryos.

Adjudication

IVF contracts that address the disposition of frozen embryos often take one of two forms: they can either be drafted by an attorney or incorporated into the consent document provided by the IVF clinic.29 What happens to the embryos in the case that a divorce is commonly covered by both IVF contracting techniques.30 No matter how a couple decides to an agreement before beginning IVF,31 Most couples have formal, mutually endorsed agreements that state what will happen to the embryos in the event of divorce.32 When parties are trying to enforce a contract but cannot agree on how to handle the frozen embryos, a frozen embryo dispute may occur in court. Courts have used one of three theories to rule on disputes involving the distribution of frozen embryos:33 the three approaches are hybrid approach implementation, contemporaneous consent, balancing test, and pure contractual.34

Pure contractual approach

The approach most usually used to interpret and uphold IVF contracts is known as the pure contractual approach.35 IVF contracts are handled using the Pure Contractual Approach similar to any other contract kind where courts settle disputes based on the terms of the contract signed by the parties, which must be in conformity with the existing laws of the land as the law cannot be used to enforce an illegal or immoral contract.36 General contract law norms, such as the requirement of consent at the time of the agreement, are followed in the interpretation and execution of IVF contracts and do not rely on any particular procedures in the event of a dispute.37 This method is supported by the notion that competent people are free to enter into contracts and that those contracts should be interpreted in accordance with the parties’ intentions, just as they would be in other types of agreements.38 This technique of IVF contract’s interpretation, safeguards, limitations, and defences available in any other contract dispute applies to enforcement.39

Balancing test approach

A subjective test used by courts to balance conflicting interests is known as the balancing test approach.40 A judge is most likely to use a balancing test in a complicated situation where an equitable outcome can only be reached by taking into account a number of different factors that are relevant to the parties in the current case; this approach gives the judge a great deal of discretion in deciding how the dispute will be resolved.41 Despite introducing a weakness that effectively rendered disposition agreements useless by providing legal weight to either party’s change of heart, the court’s assertion that it would be ready to maintain such agreements posed a problem.42 If there is a later disagreement, the interests of the parties are determined using a balancing test similar to the Davis v. Davis method, with a lot of weight placed on the interests of the party trying to avoid procreation.43 The balancing test ensures that parties are treated fairly to the greatest extent possible, but it frequently causes parties to be uncertain about the case’s conclusion because the judge has complete discretion over the cryopreserved embryo in question’s ultimate fate. The court’s discretion was purely guided by the parties’ interests. The Assisted Reproductive Technology Bill 2016 failed to mention the balancing test approach as one of the adjudications mechanisms in resolving disputes on the ownership of an embryo which is the insufficiency of the ART bill in Nigeria even if the Bill has been abandoned since 2016, as it is the Bill is insufficient in regulating cryopreservation of human embryo in Nigeria.

Contemporaneous consent approach

The contemporaneous consent approach should be used to interpret and enforce IVF contracts since it preserves the fundamental rules of contract law while still defending couples’ competing interests in the event of a dispute.44 The fundamentals of contract law are upheld by the contemporaneous consent approach, which also includes an extra measure of protection. Courts frequently interpret and enforce IVF contracts in accordance with this technique without requiring a change of heart on the part of any party at the time of enforcement.45 Iowa Courts will not make any challenged agreements enforceable, regardless of the outcome of enforcement.46

Hybrid approach implementation

The hybrid approach sees embryos as having the ability to develop into human beings, better balancing the needs of parents and future children. this is due to the fact that embryos differ from other types of personal property or marital assets in that they can be used to conceive a biological child by either party, allowing for the balancing of the interests of both the parties who created the embryos as well as those of any future children who might be born as a result of one party’s use of the embryos,47 when attempting to determine the right allocation of frozen embryos, the hybrid approach eventually gives judges more discretion.48 In contrast to simply upholding the original intent of the contracting parties to a dispositional agreement, the hybrid approach places emphasis on the necessity of striking a balance between the interests of both partners as well as those of any potential children. However, in the event that a dispositional agreement was properly entered into by both parties, the Hybrid Approach still considers the parties’ express original intent when calculating how much of the asset should go to which party.49 In a recent case involving a frozen embryo, Jocelyn P. v. Joshua P., Jocelyn, who used IVF to become pregnant after receiving a primary infertility diagnosis with her former spouse, Joshua. The conflict was settled by the Maryland Court of Special Appeals using a hybrid contractual balancing method.50 At their fertility clinic, a consent document for in vitro fertilization, intracytoplasmic sperm injection, assisted hatching, and embryo creation was signed by Jocelyn and Joshua before they started the IVF procedure.51 When a contract does not reflect the progenitors’ intent, the balancing test must be utilized to evaluate their reproductive rights as well as a variety of other non-exhaustive factors, including:52 (1) the intended use of the party seeking to preserve the frozen embryos; (2) the physical ability or incapacity of a party seeking to implant the frozen embryos in order to have biological children through other methods; (3) the parties’ initial reasons for pursuing IVF; (4) hardship for the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith or attempt to use the frozen embryos as leverage in the divorce; and (6) other pertinent case-by-case factors.53

Reproductive autonomy

There is a growing belief that choosing to have children is a very private and personal matter that should be decided by the parties themselves.54 The idea of procreative liberty encompasses the idea that individuals should have the last say in their reproduction.55 The concept of procreative liberty is directly at odds with the idea of forced parenting since it removes the parties’ decision-making authority and places it in the court’s hands. Even if a party succeeds in obtaining both legal and monetary free themselves from all obligations to the possible child, avoiding formal paternity,56 a court nevertheless imposes biological parentage on a party even if it grants despite the opposing party’s protests, one party was given access to the frozen embryos.57 These include permission, the ability to reproduce, and the right to refrain from doing so.

Posthumous reproduction (PHR)

PHR happens when a party donates gametes before passing away and the receiver wants to use them later.58 This typically occurs when a spouse whose gametes were preserved for eventual use dies and the remaining spouse wants to use them, or when a child who has passed away has donated their gametes to their parents, who subsequently wish to use them.59 Any of these circumstances involves people who are exercising their freedom to procreate, although noncoital.60 The strictest standards for the industry on this topic were published in 2006 by the European Society for Human Reproduction and Embryology.61 This state that in order for posthumous reproduction to be legal, the following requirements must be satisfied: the decision must be made by the surviving partner in the relationship; the deceased must have given written consent regarding the use of gametes at the time of storage; and the surviving partner must wait at least a year to allow themselves time to grieve before using the gametes. If these conditions are met, children born through posthumous reproduction should not be treated differently from children born before a parent passes away.62 After years of attempting to conceive and undergoing fertility therapy, Ted Jennings lost his wife Fern-Marie Choya unexpectedly in 2019 while she was expecting twin girls.63 Choya had not provided written authorization for posthumous surrogacy, thus the fertility authority, the Human Fertilisation and Embryology Authority (HFEA), denied Jennings’s request to be able to use their final frozen embryo to have a family.64 The high court’s family division determined that Jennings may use the final remaining embryo for posthumous reproduction in order to carry out his late wife’s desires.

Surrogacy

Surrogacy, often referred to as ’“womb renting”,65 is a situation in which one person, the ‘Surrogate Mother’, bears a child for another, the ‘Commissioner’, and the former completely cedes all rights to the latter regarding the kid, including custody, upbringing, care, and parenting.66 Ruth and Daniel Nahmani chose to undergo IVF after experiencing infertility for a while.67 Ruth Nahmani was unable to conceive, so the couple decided to use a surrogate from California to carry their child.68 After IVF but before the surrogacy plan could be put into action, Daniel Nahmani moved in with another lady, had a child, and then left his wife.69 Ruth Nahmani desired to carry out the insertion of the frozen embryos despite her refusal to divorce her husband. Ruth and Daniel no longer desired to become parents, and Daniel preferred that the embryos be destroyed. Ruth launched a lawsuit after being denied her request to have the embryos released from the hospital. The surrogate’s due to the fact that Ruth was no longer able to create eggs at the time of the hearing, the implantation of the embryos represented her last chance to pass down her genetic material.70

Same-sex and gestational surrogacy

A written contract is required for every patient using third-party reproduction. There should be independent legal advice for each party engaged. The names of both partners may not be allowed to appear on the birth certificate, Dependent on the nation or state the males are from and the location of the surrogate’s delivery. The patient must be aware of the legislation of their home state, the surrogate’s home state, and the state where the surrogate gives birth, as paid surrogacy arrangements may occasionally be prohibited in some jurisdictions.71 This gives a transgender person who has had gender reassignment surgery the chance to become pregnant later on using a surrogate; however, this practice is prohibited in Nigeria.72

Statutory storage period for embryos

Cryopreserved embryos should be permitted to expire under the law as it stands if they are not used when the maximum storage time has passed for any reason for which permission has been granted. At the thought of letting several embryos die when they could be utilized for treatment, both licensed clinics and patients are becoming increasingly concerned.73 The possibility of expanding the maximum storage term is thus brought up. The regulation governing IVF practice in each nation determines the longest period of time that cryopreserved embryos may be kept in various ART facilities worldwide. The maximum storage term is therefore set at five years in England,74 France,75 and Canada,76 While in Australia, this time frame is increased to ten years.77 The Human Fertilization and Embryology Authority (HFEA) in the United Kingdom recently came to the conclusion that there would be many more benefits to extending the maximum storage duration than disadvantages. The HFEA proposes maintaining a five-year guideline for embryo storage, while there should be a provision at the end of that time for medical or social reasons to allow the couple to specifically reaffirm their agreement to increase the storage time to 10 years.78 A provision to permit an extension beyond 10 years in exceptional circumstances would put women who might want to store embryos in the same position as men, who are allowed to store gametes until they are 55 years old for exceptional medical reasons. Cryopreserved embryos may be kept for a maximum of five years in Israel, with a second five-year extension possible after the first five years have passed.79 While in Australia, if a couple cannot agree on what to do with their cryopreserved embryos after the 10-year window has passed, the Institutional Ethics Committee will make the decision.80 In Nigeria, due to the lack of legal framework or regulation, it would appear that embryos can be stored in perpetuity. Society will eventually have to decide who, if anyone, should be given these abandoned embryos, and that time is rapidly approaching. Medically and morally, using or donating cryopreserved embryos is acceptable. Rather than destroying these embryos, research projects should be supported.

The ethical implications of cryopreserved human embryos in an IVF procedure

Destruction of embryos

For the couples that develop the embryos as well as for society at large, the disposition of unneeded embryos presents moral and ethical questions.81 Initially, it is not a contentious matter to retain embryos for potential usage in the future. It only turns into one when the viability or suitability of the embryos for transfer is questioned after they have been stored frozen for a number of years. The unknown is the maximum amount of time an embryo can be frozen before it becomes unsafe to utilize in IVF.82 Because the Catholic Church views ART and all of its effects as being unacceptable, it avoids discussing the topic of abandoning embryos explicitly. Jewish law allows for the passive killing of excess embryos by allowing them to defrost and perish naturally. The disposition of the embryos is a private matter for the couple involved in most Protestant religions.83 The pro-life viewpoint contends that because a new, genetically distinct live human being exists, upon conception or fertilization, a new person is created. The fertilized egg and early embryo are so entitled to the rights and respect due to people, and they cannot be killed or aborted. The opposing viewpoint acknowledges that the prenatal, living human entity is genetically distinct, alive, and human with the capacity to become a person, but it disputes that these qualities render the embryonic, live person is a subject of rights or obligations.84 According to John Harris, there is no moral justification for killing or permitting the death of embryos when they could instead be used for our common good. He also believes that there is little justification for letting human remains rot when they could be used to save many lives through, for instance, transplantation orders or other similar measures.85

Adoption of embryos

In embryo adoption, a woman agrees to adopt the kid who is born as her child in order to preserve the only possible means of living a human being’s life.86 For individuals who desire children but are unable to have them, Pascual also believes that embryo adoption may be a legal option, but only if the adoption procedure is handled in the same manner as when adopting children without parents.87 Tonti-Filippini88 contends that creating and approving a pregnancy using an already created embryo diminishes the marital partnership’s sacredness since it contradicts the union-promoting goals of marriage. Tad Pacholzyk,89 opposes embryo adoption because, in his view, it would go against the intrinsic rights of spouses to marital union, particularly the right of the husband to his wife’s body. He is a member of the National Catholic Bioethics Center. Additionally, he says that practices that violate marriage’s core values specifically, their exclusive usage within the union are unacceptable. Collard,90 claims that, more than any other kind of reproduction due to problems with ontology and kinship, embryo adoption poses moral dilemmas and further difficulties about illation. A lot of couples decide to place their unborn children up for adoption, to help other infertile couples, several organizations around the country organize the donation of frozen embryos, and the defrosted adopted embryos are then implanted into the adoptive mother’s uterus. Such an approach is less expensive than IVF and does away with the need for the adoptive mother’s ovarian hyper-stimulation.91 Couples can have children as long as they’re married, hence Islamic law does not permit embryo adoption. Adoption of embryos is prohibited because the father of the embryo is not married to the mother of the child. Jewish law has a problem with embryo adoption since it could lead to incest because the adopted child might unintentionally marry their genetic sibling.92

Embryo donation

Couples who undergo IVF frequently choose to transfer many embryos and freeze the remaining ones, presumably for a future pregnancy. However, the genetic parents typically never use these excess embryos, thus they are stored in storage forever.93 Surprisingly many of these embryos are kept in storage on other continents. It is estimated that 400,000 embryos are being cryopreserved in the United States alone, many of which won’t be used by their genetic parents.94 The prohibition of financial gain on all elements of the human body as a whole is a fundamental principle articulated in Article 21 of the Convention on Human Rights and Biomedicine. Article 2 of the Convention on Human Rights and Biomedicine makes it clear that human interests and wellbeing come before those of society or science as a whole. Article 15 of the Convention, which stated that scientific study in the domains of biology and medicine shall be conducted freely in accordance with the principles of this convention and other legislation ensuring the protection of human beings, applied this concept to research.95 However, this freedom is not absolute because it is constrained by the fundamental human rights that safeguard the individual. Embryo donation may be an option for some couples if the woman has an early ovarian failure or does not respond well to standard ovarian stimulation and the man has severe abnormalities in gamete production is a viable alternative for starting a family.96 Donating embryos may also be recommended for couples who are carriers of a hereditary illness that could result in the kid developing seriously ill.97 More than 40% of clinics appear to be focused on younger women, who often produce eggs of greater quality but may not have considered the long-term ramifications of donation, despite the American Society for Reproductive Medicine (ASRM)’s recommendation that donors be at least 21 years old.98 The donors of the embryos are required to sign an informed consent form granting authorization to utilize their embryos for donation and waiving any claims to the embryo(s) and any children who could be born as a result of the transfer of these embryos.99 In order to stop the transfer of these illnesses to the receiver or the offspring, they should be examined for genetic and infectious conditions.100

Donation towards research

Internationally, there has also been fierce debate regarding the use of embryos for research, notably in connection with human stem cells. As a result, many national laws governing this topic have been passed.101 As a result, the decision to support research was deemed to be “the least harmful” one.102 The Catholic Church holds that any exploitation or experimentation on human embryos violates respect for human dignity.103 The experimentation on living human embryos cannot be justified in any manner, regardless of how noble the goal may be, such as benefits to other people or society as a whole.104 An embryo, is a potential human being who requires special respect, according to the ASRM. The ASRM is in favour of embryonic research if it is carried out humanely and is anticipated to produce fresh insights that will benefit human health. As a result, the ASRM only supports the use of embryonic stem cell research if the couple grants their consent, as informed consent is the cornerstone of all human subject research.105

Assisted Reproductive Technology (ART) Bill 2016 in relation to cryopreservation of human embryos in an in-vitro fertilisation procedure

The sustainability of many marriages depends on the desire to become parents, this is however subject to the couple’s desires to be a parent. The number of assisted reproductive technology procedures has increased recently as more couples and people have turned to alternative therapies and conception techniques to conceive or treat infertility in Nigeria. The National Assembly attempted to pass the Assisted Reproductive Technology Bill in 2016, which was supported by Senator Lanre Tejuoso.106 This attempt came about as a result of the increased demand for a legislative framework to control the use of assisted reproductive technology. Professors Oladapo Ashiru, an embryologist, and Osato Giwa-Osagie, an endocrinologist, delivered Nigeria’s first IVF child on March 17, 1989, at the Lagos University Teaching Hospital/College of Medicine, University of Lagos. It was the first test-tube fetus to be born in Nigeria, however, the parents have thus far declined to give their approval for the child to be made public out of fear of stigmatization.107 The Assistive Reproductive Technology (Regulation) Bill 2016 is the closest Nigeria has come to regulating the cryopreservation of human embryos after an IVF process. Unfortunately, that Bill has not yet become a legal document. Despite this, Nigeria has not made the cryopreservation of human embryos during an IVF process a crime as it is not specified as an offence by any written legislation and has no associated penalties. As a result, it cannot be stated that someone who participates in the cryopreservation of human embryos during an IVF treatment in Nigeria has broken the law. Section 50 of the National Health Act108 forbids the importation and exportation of human zygotes or embryos as well as the manipulation of any genetic material. Additionally, any action like nuclear transfer or embryo division for human cloning is prohibited by the law. Anyone found guilty of violating one of these rules faces a mandatory minimum sentence of five years in jail without the possibility of a reduced sentence. As the entire process does not involve embryo manipulation or embryo splitting, this section cannot be understood as a legal framework governing the cryopreservation of human embryos. However, because it prohibits the importation or exporting of a cryopreserved embryo, subsection (c) does apply.

Cryopreservation Procedure in Assisted Reproductive Technology (ART) Bill 2016

This law was intended to establish a national framework for the control and oversight of concerns relating to assisted reproductive technologies. This Bill’s goals are to ensure a legal framework for clarity and a broad outline of the general control to vest updates on the operation of the regulations at the national and state levels; provide minimum staffing and facility requirements for the various types of assisted reproductive clinics; to ensure that assisted reproduction technology operations are legal; and to control how patients are chosen for such procedures; promote the creation and maintenance of a national infertility database; enact regulations and give patients all the information and guidance they require on the many facets of assisted reproduction technology operations; enact laws governing the study of human embryos; Specify the parameters for collecting data from sperm and gamete donors; Encourage the creation and advancement of education and research in the area of assisted reproduction.109

The National Framework for Assisted Reproductive Technology (ART) Regulation and Supervision Bill for an Act is divided into nine (IX) chapters:110 Chapter I: Introductory; Chapter III: Clinic Procedures for Assisted Reproductive Technology; The establishment of authorities to oversee assisted reproductive technology is covered in Chapter II. Chapter V covers the sourcing, handling, and record-keeping of gametes, embryos, and surrogates. Chapter VI covers the regulation of embryonic research. Chapter VII covers the rights and obligations of patients, donors, surrogates, and children. Chapter VIII covers offenses and penalties. Chapter IX covers other topics. Assisted Reproductive Technology Clinic Tasks, Chapter IV. Chapters 1, Chapter iii, Chapter iiv, Chapter v, Chapter vi, Chapter vii, Chapter viii, and Chapter ix will be looked at in this study.

Section 2(h) of the Bill defines an embryo as a fertilized ovum that has started cellular division and has continued development up to the blastssocyst stage until the end of five days. Section 2(f) gives a precise description of cryopreservation as the freezing and storing of gametes, zygotes, and embryos. The problem with this definition is that the definition of embryo according to the Bill ends five days after the end of blastocyst development.111 The use and production of embryos outside the human body for the purpose of treating infertility are stated in Section 13(3)(b) of the Bill; this section of the Bill acknowledges that during an IVF procedure, an embryo can exist outside the human embryo; subsection (c) of the Bill acknowledges the process and storage of gametes; and subsection (d) of the Bill acknowledges research on embryos for the purpose of treating infertility and genetic disorders or diseases.112

Section 23 of the Bill prescribes the duties of the assisted reproductive technology clinic using gametes and embryos, and subsection (6) allows for posthumous reproduction through ART.113 The impressive implication of this act states that where posthumous reproduction has not been expressly included in the cryopreservation contract between party (ies) and the clinic, the consent can be implied from the desires of the deceased person’s or spouse to engage in cryopreservation. Pre-implantation genetic diagnosis (PGD) is acknowledged in Section 24 of the Bill, which also specifies that PGD shall only be used for the purpose of screening embryos for known, antecedent, diseases that run-in families or are genetic, or as the Registration Authority may specify. According to subsection (2), it is only permitted to destroy or donate an embryo with the consent of the patient if the embryo has a pre-existing, hereditary, life-threatening, or genetic condition. Section 25 criminalises the practice of sex selection on cryopreserved embryos before implantation.114 This disadvantage is that in Nigeria, where there is a need for a male child, patients who desire ART for the purpose of having a male child may not be legally permitted. The implication of this is that there is a possibility for illegal sex selection to be the norm and may even result in an unlicensed fertility clinic taking advantage of patients’ desperation to choose the sex of their embryos before implantation.

The Bill’s Section 27 specifies that embryos must be kept for no longer than five years.115 The fertility clinic has the legal right to destroy or donate the embryo to a recognized research organization, but there is an exception if the storage fees are not paid. This research disagrees with the maximum storage period because advances in medicine may call for a longer period of time for patients undergoing chemotherapy or other treatments that impair their ability to conceive. Section 29 of the Bill restricts the sale of embryos.116 The restriction in this Bill provision is supported by this research. In accordance with Section 30’s regulations on embryonic research, subsection (1) forbids and even makes illegal the export of embryos for research purposes. This research disagrees, nevertheless, with the state of the medical field in Nigeria, and the Bill must take this into account and increase funding for such technological innovation. Research may have been done on genetic illnesses, which Nigeria may not have access to. The provisions in Section 31 of the Bill on the regulation of research are supported by this research.117 This study supports the chapter vii provision Since it strives to protect both the participants to a surrogacy agreement and the child or children born as a result of that arrangement under ART, it focuses on the rights and obligations of patients, donors, surrogates, and children. This study concurs with the ART Bill’s chapters viii, ‘Offenses and Penalties’, and ix, ‘Miscellaneous’, since they both seem feasible and likely to be adopted in Nigeria.

Recommendations

The work recommends a systematic recognition of assisted reproductive technology in Nigeria by the legislators; the need for a legal framework in Nigeria regulating the in-vitro fertilisation process in Nigeria by withdrawing and redrafting the assisted reproductive technology bill 2016; this study recommends that a public hearing be held when the art bill is being redrafted and that medical practitioners, medical doctors with expertise in art, and legal professionals should be included and public sensitization of cryopreservation procedure, its purpose, the possible abuse and the need for a legal framework in Nigeria.

Conclusion

In conclusion, it is clear from the development of ART throughout the years and the technological innovations addressing infertility and offering treatments and cures for couples. ART provides alternatives to help them achieve their goals. Despite its benefits in treating infertility and giving a different method of conception than the normal ways of creation. The introduction of the cryopreservation process into IVF is meant to end biological infertility and make sure that embryos are kept in pristine condition to avoid cell damage, couples or individuals may elect to undergo this procedure as part of fertility treatment or preimplantation genetic testing in an effort to avoid or significantly reduce the number of children born with genetic diseases in the near future, as well as individuals undergoing gender reassignment surgery. This work concludes that there is a lack of legal framework in Nigeria as regards cryopreservation of human embryos in an in-vitro fertilisation. The cryopreservation of human embryos during an IVF procedure is not regulated by Section 50 of the National Health Act because this procedure does not manipulate or clone embryos; rather, it preserves the embryo for use in the future. As a result, those who participate in or engage in the cryopreservation procedure are not subject to the punishments outlined in this section. The National Health Act’s interpretation section does not describe an embryo in terms of ART or IVF; rather, it defines an embryo as a human progeny within the first eight weeks of conception. Any studies that increase our understanding of the origins of disease, the evolution of medicine, or the development of novel uses for medical technology are considered to be part of the field of health research. To conclude, because ART use has expanded in Nigeria, the ART Bill 2016’s abandonment has been damaging to the practice of human embryo cryopreservation there.

The Assisted Reproductive Technology Bill 2016 was intended to provide a legal framework for assisted reproductive technology in treating infertility in Nigeria and this Bill would have provided directions and regulations for the cryopreservation of human embryos in an in-vitro fertilization. It gives the method a legal basis for regulation, ensuring that it is practiced safely and morally. The Bill is a crucial step toward regulating the practice of cryopreservation during an in-vitro fertilization cycle. Despite this positive step toward creating a legal framework to control, protect patients, and practice cryopreservation, this work concludes that the Bill is a workable progress despite the issues raised in this chapter. The Bill can be passed and establish a legal foundation for the practice of cryopreservation of human embryos during an in-vitro fertilization treatment with a few revisions and redrafts.

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Ayeni JV, Omidoyin TJ and Bamidele I. Cryopreservation of human embryos in an in-vitro fertilisation procedure: the need for a legal framework in Nigeria [version 1; peer review: 1 not approved]. F1000Research 2023, 12:569 (https://doi.org/10.12688/f1000research.133821.1)
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ApprovedThe paper is scientifically sound in its current form and only minor, if any, improvements are suggested
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Reviewer Report 12 Apr 2024
Swati Gola, University of Exeter, Stocker Rd, Exeter EX4, UK 
Not Approved
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There is definitely an argument for the need of regulating cryptopreservation. However, authors have failed to make the argument adequately.
To begin with, there is no central argument and a theoretical underpinning, i.e., why cryptopreservation of embryo is to ... Continue reading
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Gola S. Reviewer Report For: Cryopreservation of human embryos in an in-vitro fertilisation procedure: the need for a legal framework in Nigeria [version 1; peer review: 1 not approved]. F1000Research 2023, 12:569 (https://doi.org/10.5256/f1000research.146836.r247999)
NOTE: it is important to ensure the information in square brackets after the title is included in all citations of this article.

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Approved - the paper is scientifically sound in its current form and only minor, if any, improvements are suggested
Approved with reservations - A number of small changes, sometimes more significant revisions are required to address specific details and improve the papers academic merit.
Not approved - fundamental flaws in the paper seriously undermine the findings and conclusions
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