A company has broken the embryonic cold chain and the Court has warned that there is a legal loophole to investigate the case

A company of biological transport I had the task of carrying transferred embryos from Tucuman to Salta. He did, but when he reached the border between the provinces, he found that the collar was closed: the trip was recorded under the first days of the restrictions due to the pandemic due to the COVID-19in March 2020. The company—in this scenario—instead of taking the necessary precautions to protect the hardware, broken the cold chain then the embryos were Rejected by specialists. The couple injured in the process of fertilization made a criminal complaintbut now in court they have warned that there is a legal vacuum that he does not plan to criminally investigate these cases.

“it is not typed whose conduct kill a human embryo engineered in vitro and sustained extracorporeal life, not even through an intentional act,” the judges of chamber VI of the criminal chamber said. Ignatius Rodriguez Varela and Magdalena Laino. In turn, they warned that the Civil and Commercial Code establishes that the penalties must be a law on the protection of the non-implanted embryo which was never made.

The story is that of a couple who decided to make a fertilization process for her to get pregnant. It was at a fertility center in Tucumán but in June 2019 the process failed. They consulted another center in Salta where they recommended uterine surgery and immediate embryo transfer. In February 2020, they carried out the operation and the transfer was agreed for the following month or April. SO contracted a biological material transport company transport the embryos from Tucumán to Salta.

The embryos were transferred but when they reached the border with Salta they could not pass because movement restrictions had started to apply due to the coronavirus pandemic. The company informed that they had to return. But when the specialists came back, they opened the thermos that contained the embryos and threw it away because the cold chain has been lost according to the studies that have been made on the material.

The couple filed a complaint penaltyl for the case to be considered and they pointed out that the person who had to collect the thermos in Salta did so a day late and that the border was already closed. They denounced that the transport company had been negligent breached a contractual obligationwhich caused the destruction of human beings in an embryonic state.

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At first instance, both the public prosecutor’s office and the court which intervened I reject her. And now that decision has been upheld by the Criminal Chamber in a decision it published elDial.com and which he accessed GlobeLiveMedia.

“We must first recognize that it’s not typed the behavior of the person who annihilates a human embryo conceived in vitro and kept alive extracorporeal, not even through an intentional act,” the judge said. Rodriguez Varela and added that the Civil and Commercial Code contains a transitional clause which establishes that “the protection of the non-implanted embryo will be the subject of a special law”. But never sanctioned and so the country “incurs an unconstitutional and anti-conventional breach by omitting the integral protection of persons in all their conditions, in particular in the absence or deficit of their penal models and especially with regard to unborn children”.

The maid summoned the lawyer Jorge Buompadre only in your article “Extracorporeal Fertilization and Crime” of 1993 indicated that a special law should be in place for these cases because in this type of event “Abortion is not configured because the embryo is not in the womb (missing the condition of a pregnant woman) and neither is homicide, since the requirement of birth does not have been verified, an essential condition for the proper framing of this attack on human life”.

“The facts denounced they don’t realize a fraudulent moodnor can their criminality stem simply from the extreme awkwardness attributed to the defendants in the execution of the contractually assumed obligations”, declared Rodriguez Varela, who rejected that a criminal offense could be investigated but pointed out that the transport company “can be claimed before the jurisdiction of civil law, as well as the sanctions that can be applied in the administrative headquarters due to the regulated nature of the activities they have carried out, which justifies the issuance of official letters and the sending of testimonies to the corresponding regulatory entities”.

The judge Laino he shares his colleague’s vote and makes his own considerations. He referred to the “erroneous decisions taken by the officials” of the transport company which “are unacceptable given the particular nature of the task they have imposed on themselves”. “The field in which they worked requires an ethic and a responsibility that does not admit the degree of improvisation that has been exhibited in these actions regarding the management of the unforeseen that arise”, added the waitress.

In addition, Laiño pointed out that “so relevant is the normative failure regarding the delimitation of the protection that corresponds to attributing to embryos and the recognition of their rights” that the Supreme Court de la Nación will convene a public hearing to discuss the case of a request for voluntary interruption of the cryopreservation of embryos obtained through assisted human reproduction techniques.

Thus, the Chamber confirmed that because of the legal vacuum The case could not be the subject of a criminal investigation, but it was possible to bring civil and administrative proceedings.

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