Extended Conservation of Identity and Biological Information in Assisted Reproductive Technology

Prosecutor Fabián Canda, from the Federal Court No. 8 on Civil, Commercial and Administrative Matters, partially supported an amparo action two parents filed on behalf of their daughter. The amparo aimed at extending the personal data preservation period before the Argentine Ministry of Health and Social Development. The purpose of the action was to prolong the preservation of the gamete donor identity and biological information, in a context where the couple’s child was conceived through Assisted Reproductive Technology (ART).

Law No. 26,529 on Patient Rights in their Relations with Healthcare Professionals and Institutions sets forth a minimum retention period of ten years. However, in the analysis, the Prosecutor argued that this amount of time is insufficient and suggested that the Ministry of Health should ensure the protection of donor identity and biological information beyond the ten-year period. This stems from the fact that individuals conceived through these techniques can only exercise their rights upon reaching 18 years of age.

The Prosecutor's Office also examined the protection of medical and identifying information of donors involved in medical procedures, pursuant to Ministry of Health Regulation No. 1305/15, which mandates that healthcare facilities for medically assisted reproduction must maintain duplicate records of sperm and ovum donors, and details about samples, recipients, and results. These records must be stored in two separate locations under the responsibility of the medical director. Based on the principles of Law No. 26,529, the Prosecutor concluded that there is no evidence of the healthcare facility breaching its legal obligation to safeguard and preserve information, thus excluding any concrete risk for the data.

Finally, the Prosecutor highlighted that the Argentine Civil and Commercial Code establishes an intermediate approach, distinguishing between non-identifying information related to health and identifying data. Regarding access to donor information, the prosecutor emphasized that the general rule is anonymity. Thus, under exceptional circumstances, an individual born through ART could request health data from the corresponding healthcare facility, provided it is relevant for health reasons and done through a well-grounded judicial proceeding.