Frozen in Time: Disposition of Frozen Embryos Gives Rise to Ethical, Legal, and Yes . . . Political Considerations

Gwen Mayes, JD, MMSc


June 06, 2003


Increasingly, couples are turning to assisted reproduction technologies (ART) to create families of the size and composition of their choosing. Of the approximately 60 million women of reproductive age in 1995 in the United States, about 1.2 million, or 2%, had had an infertility-related medical appointment within the previous year, and an additional 13% had received fertility services in their lives.[1] In vitro fertilization (IVF), one of the more common forms of ART, entails extracting a woman's eggs, fertilizing them in the laboratory, and then transferring the resulting embryos into the woman's uterus in hopes that a healthy pregnancy and birth will follow.

In most cases, however, more fertilized embryos are available through IVF than are needed or used. A nationwide survey conducted by the American Society of Reproductive Medicine and the Rand Corporation found that 400,000 unused frozen embryos are currently being stored in fertility clinics.[2] As the practice of IVF grows, so will the number of banked frozen embryos and the ethical and legal considerations regarding their disposition.

At the heart of the matter is how, if at all, do couples dispose of or dispense remaining frozen embryos that they no longer believe they will use for their own conception purposes. "There are essentially 4 options available to parents," says Nanette Elster, reproductive law expert and Assistant Professor at the University of Louisville Institute for Bioethics, Health Policy and Law (personal communication with Nanette Elster, JD, MPH, Assistant Professor, Institute for Bioethics, Health Policy and Law, University of Louisville, Louisville, Kentucky, April 30, 2003). "Couples can opt to leave them in storage, donate them to an infertile couple, donate them to research, or allow them to thaw and be destroyed. It's just not always an easy decision."

Although couples enter into contractual arrangements with fertility clinics on the front end of IVF services, most contracts require that the couple "re-consent" a second time before subsequent action is actually taken on remaining frozen embryos. But what if a couple can't decide, or a fertility clinic loses contact with them over the years? "If after 5 years the clinic fails through a good-faith effort to locate the parents of the frozen embryos, then our position is that the clinics are not obligated to continue storage," says Sean Tipton, administrator of the public affairs office of the American Society for Reproductive Medicine (personal communication with Sean Tipton, administrator, Office of Public Affairs, American Society for Reproductive Medicine, Washington, DC, May 16, 2003).

"They cannot use the embryos for another purpose, but they don't have to store them in perpetuity."

For couples deciding to donate remaining frozen embryos, few state laws offer guidance. "Only 5 states recognize embryo donation expressly," says Susan Crockin, a lawyer in the Boston area specializing in adoption and reproductive law. (personal communication with Susan L. Crockin, Esq. Newton, Massachusetts, May 21, 2003). "These laws recognize the recipient couple as the legal parents of any child born through embryo donation. Other states have introduced legislation, but most bills of this nature are not viable."

Confounding a couple's decision to donate remaining frozen embryos is the degree to which they wish to predetermine the make-up of the recipient couple. Some donor couples willingly agree to anonymous donation, while others want to donate to couples of a certain socioeconomic status, race, religious orientation, or age bracket. Both Crockin and Elster agree that the donor couple should be able to have a say in who receives their frozen embryos. "People's embryos are personal and I'm not sure there are any unethical limitations on determining who can be the recipients," says Crockin. "If a donor couple is only comfortable with a child growing up in a 2-parent family, then that is what is going to give them peace of mind." Crockin is quick to point out that a significant consideration for the donor couple is that their donation is likely to result in genetic siblings of their own children, a factor that favors directed donation with open lines of communication between the two couples. "Most directed donation of frozen embryos is between friends or close family members," adds Elster. "Couples don't, at least yet, generally go out looking for a recipient couple for their unused embryos."

As reproductive experts look for answers to questions surrounding the disposition of current and future frozen embryos, political voices have joined the chorus. In July 2002, the Department of Health and Human Services issued an announcement of financial assistance [approximately $900,000] to support the development of public awareness campaigns for embryo "adoption" in hopes of meeting Congress' goal of "educating the American public about the existence of spare embryos and adoption options."[3] But while the legislative intent may be laudable, many in the fertility business question the motive behind promoting the term "adoption" when embryo donation has been the recognized practice. "It's not just semantics," says Elster. "Adoption refers to a living child who needs placement. The designation of embryo adoption confers a legal status for which there is no legal precedent."

Crockin is also concerned with the term embryo adoption and the recent attention it has received. "The term embryo adoption is not legally accurate," says Crockin. "Adoption law is very state specific and has to do with clarifying parentage and determining parental rights. It may sound warm and fuzzy, but it's really a misnomer and nothing more than an attempt by various political groups to elevate personhood status to reproductive tissue." While Crockin admits that she is less concerned with the overlapping psychosocial issues between adoption and donation, it's the legal conundrum that concerns her the most. "Even those that use the term embryo adoption do not apply state adoption laws to the situation," she adds.

Despite the political differences in terms, fertility proponents agree that infertile couples should be afforded legal access to available frozen embryos. But the scarcity of laws and regulations safeguarding the practice has opened legal and ethical questions yet to be answered. "Many of these debates center around social decisions, not medical ones," concludes Tipton. "We are all for giving patients with fertility problems as many options as possible, but frankly, the political climate in this country makes the discussion of the disposition of frozen embryos nearly impossible."


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