Holding the Biological Clock:A Checklist for Social Egg Freezing in Nigeria
- Undiga Emuekpere
- Jan 26, 2021
- 4 min read
Recently I was on a panel discussing Social Egg Freezing in Nigeria. My task was to talk about the legal dimension of Social Egg freezing in Nigeria. I thought it would be a good idea to present some of my thoughts. In this note I will be focusing on a few key issues which the egg depositor should look out for : Payments and Defaults, Consent, Verification and Incapacitation or Death of the depositor.
Social egg freezing is the retrieval and freezing of human eggs for non-medical reasons. The egg depositor, usually a woman, deposits eggs with a cryobank for use at a later date when she is ready to start a family. Biologically, a woman has the best quality and quantity of eggs at a time when she is often not ready to start a family. This decision to delay starting a family can be due to varied reasons: education, indecision, career, lack of financial stability or the simple fact that neither Brother Manage nor Mr Right have turned up. So she faces a dilemma: have a baby as dictated by biology or hedge her bets by freezing some eggs while she waits for ideal conditions.
The cryobank's main contractual responsibility is to keep the eggs in optimal conditions for the retention of their viability and to make them available on request. The truth is that quite a few of the frozen eggs do not survive the freezing and thawing process and a lot depends on the initial quality of the eggs.So the question is, what does the law have to do with this and what happens in a country like Nigeria, where no relevant laws exist?
In general one can liken a cryobank egg deposit to the deposit of cash or other valuables in a bank. A contract for the deposit is signed by the parties who both have their respective rights and obligations. The cryobank's main duties are to keep the eggs in such conditions,as dictated by industry standards, to give them the best possible chances of survival and make them available on request. The cryobank also undertakes to deliver the eggs on demand to either the egg depositor or according to their instructions.In exchange, the egg depositor is expected to make payments as agreed in the contract.
It is highly recommended that before signing the contract, the egg depositor has a real good look at the documents and understands them properly before signing. Some key terms include clauses on payments and defaults, consent and incapacitation or death of the depositor.
Payments and defaults: Many of the contentious aspects of any contract relate to payment. The following clauses should be carefully examined.
Payment dates:Every egg deposit contract must clearly state the date when payments are due and how payments are to be made.
Penalties: When and if penalties for late payment apply.
Notices:If any notices of impending payments will be given and at what intervals.
Means of Communication:The means by what means such notices and any other communications will be sent.
Grace periods:The availability or otherwise of grace periods after payment default
Termination of Contract: It is critical to check at what point the cryobank is allowed to dispose of the eggs due to payment defaults. The discontinuation or suspension of the performance of contractual obligations is the most powerful remedy the cryobank has! This is critical particularly if the egg depositor is no longer capable of producing more eggs and there is no back up deposit somewhere else! In reality, there is very little chance the cryobank can resume performance after suspension as the eggs may have already perished!
Consent: The contract should state what is to happen to the eggs in the event that the owner no longer needs them. Some of the usual options include disposal, research, and donation to an egg sharing program. The egg depositor can also specify that the eggs be given to a named person. The identity and contact details of this person must be clearly stated and if necessary updated as necessary. The contract should also set out how the information relating to the identity of the egg depositor will be handled in every case.
Incapacitation & Death: The contract should ideally specify what should happen if the egg depositor is either incapacitated or dies before the eggs are used. The definition of incapacitation should be set out unambiguously as well as the other instructions regarding the transfer of the eggs. Although the status of the eggs in terms of property rights has not been covered by Nigerian law, it is still helpful to consider including the same instructions in the contract in a will. This is very important in Nigeria where potentially several persons may feel entitled to the eggs including parents, siblings and spouses. In the face of competing claims over the eggs, a cryobank would be wise to seek the guidance of a court.
Verification: Fertility treatments are very emotional journeys and I am often accused of being a little clinical about my checklist.However, it is critical that the lawyer maintains some emotional distance to be able to do their job properly. One of the things intending parents are least likely to think about when an egg or embryo is being retrieved from a cryobank, is whether or not it is the right one. Unfortunately, in spite of the best efforts of the cryobanks or other fertility providers, mix ups due to human error can and do happen. It is therefore advisable to verify that the egg/embryo is the right one at the earliest opportunity.
Conclusion
Although Nigerian law has not yet caught up with assisted reproductive technologies and practice in the country, many are still taking advantage of egg freezing expertise and cryobanks to store their eggs for future use. Unfortunately, this means that it is not entirely clear how a court may proceed in a dispute arising out of an egg freezing contract. Nevertheless, there are many countries including the United Kingdom, we can copy from. As a last resort, a court can also fall back on the good old general contractual principles of good conscience and equity.However this may provide an opportunity for more subjectivity as it is very likely that such a decision will be affected by the status of human eggs as the seeds of life. It therefore behoves the egg depositor to educate themselves appropriately before they sign the egg freezing contract. My personal recommendation would be: give it a lot of thought and if you are a believer, pray too.
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