Recently, at REPROCopilot, we launched our service for the management of surplus embryos after assisted reproduction treatments. This is one of the main challenges in the sector, with a volume of nearly 800,000 cryopreserved embryos in Spain, according to the SEF report of 2022, and an annual growth of between 20,000 and 30,000 embryos.
Since the launch of our service, we have had several discussions with our clients regarding the validity of certified emails and SMS as a reliable means of communication. This is a topic we thought was well-established, but it evidently still raises certain doubts.
In this context of managing surplus embryos, reliable communication with the patient is key, as Law 14/2006 (on assisted human reproduction techniques) requires the clinic to contact the patient (and their partner, if applicable) at least every two years on at least two occasions to renew the consent for the maintenance of the embryos. If there is no response, the clinic may dispose of the embryos for other purposes such as research, donation, or thawing without any further purpose.
What is a reliable notification?
A reliable notification is interpreted as one that certifies:
- the content of the communication
- the identity of the sender
- the identity of the recipient
- the place of delivery (where it is delivered)
- the outcome of the delivery
Here, the Civil Procedure Act and the eIDAS Regulation are fundamental.
The former establishes the validity of communications made in person, at the residence, at the designated electronic address, or through telematic means chosen by the recipient. In other words, an SMS or email is obviously valid for communication purposes.
The eIDAS Regulation, for those unfamiliar with the topic, is the European regulation that establishes the legal framework for electronic identification and trust services in electronic transactions within the single European market. It is the "holy scripture" in the context of digital trust services.
According to this eIDAS Regulation, the use of certified SMS and emails issued by qualified providers approved by the Ministry of Digital Transformation offers legal security, and there are already judicial rulings that have supported this practice as valid, including statements from the Supreme Court. For instance, the Supreme Court Order of March 21, 2013 (here's the link if you're interested). In other words, the courts have fully clarified this matter for over 10 years now.
In summary
- Certified SMS and emails are reliable means of communication, legally secure.
- It is necessary to have the explicit consent of patients regarding communication channels (which 100% of patients provide when signing their LOPD/GDPR annexes).
- It is essential to use a service provider qualified by the Ministry of Digitalization of Spain (as is our case).
In fact, in our opinion, this practice facilitates the management of potential disputes with patients.
If, in addition to using this communication method, we automate its sending based on our internal protocols, we will undoubtedly be exponentially optimizing this process. This would allow managers of the vitrified embryo portfolio to focus on much more valuable tasks, centered on patient care rather than repetitive administrative tasks required by the clinic’s procedures.
Good luck and best wishes with managing surplus embryos, which present so many challenges ahead!
Our team will be happy to help you improve this area of your clinic's management.
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