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Extra embryos: What is their future?

Increasing numbers of embryos are in frozen storage, awaiting birth or destruction -- and spurring debate over whether they're people or property.

By Vida Foubister, amednews staff. Nov. 13, 2000.

Deep within drab metal storage tanks, in fertility clinics throughout the world, are hundreds of thousands of embryos. They're suspended in tiny glass straws, frozen in liquid nitrogen -- essentially in limbo, awaiting decisions that will bring them to life or see them destroyed.

Some believe that these frozen clusters of human cells are already human beings, deserving of all the rights and protections of children. Others view them as the property of the men and women whose gametes created them. Still others consider the embryos to be a unique entity somewhere in between.

What everyone does agree on is that their numbers are huge, and growing. In this country alone, there are an estimated 100,000 embryos -- or more -- in frozen storage. And increasingly, especially in light of the federal government's recent decision to fund stem cell research, these embryos are the focus of debate.

"I don't think that there is an easy answer to what do we do with these embryos because we don't yet have any common understanding of what kind of moral status they have," said Hilde Lindemann Nelson, PhD, associate professor of philosophy at Michigan State University in East Lansing. "I don't think we can discover that, we have to construct that."

Even to the doctors who work with patients who are creating these frozen embryos, their growing numbers are problematic. But, like many scientific advances, the technology that allows human embryos to be frozen was developed without full consideration of its implications for society.

"It does create lots of questions," said Michael Diamond, MD, director of the division of reproductive endocrinology and infertility at Wayne State University in Detroit. "There needs to be societal guidelines, but the science of what we can do is far ahead of those guidelines."

Decisions, decisions

Human embryos have been frozen and stored for future in vitro fertilization cycles since 1986.

Sperm can be frozen and preserved independent of the embryo, but oocytes do not easily survive the trauma of freezing and thawing. The retrieval process for oocytes is also much more invasive.

So, until the science of oocyte preservation advances, most couples undergoing infertility treatment are likely to choose to fertilize each oocyte that's retrieved. They will then have more embryos available for second or third attempts if the first cycle is unsuccessful. In addition, they maintain the option of having future siblings of the children that result from their initial IVF cycle. "There are concerns [raised by storing excess embryos], but the benefits of cryopreservation outweigh the problems," said Robert J. Stillman, MD, medical director of Shady Grove Fertility Reproductive Science Center in Rockville, Md.

Choosing how many oocytes to fertilize is just one of the many decisions facing couples as they begin IVF treatments. Before the process can begin, most fertility clinics require couples to sign two consent forms.

In the first form, which is a consent for IVF treatment, couples choose how many eggs they want inseminated. It's in the second consent form dealing with consent for cryopreservation that couples must designate the fate of any embryos that aren't implanted into the women's uterus. The options typically include discarding the embryos, donating them to an infertile couple, or allowing their use in research.

Couples must also agree on the fate of their embryos if one or both of them dies, or if they divorce.

"It's actually interesting how few people get nervous about that or how few people are really terribly concerned," admitted Alan Penzias, MD, surgical director at Boston IVF. "People who are in love and trying to have a family together have no concept they could get divorced some day and don't let it enter their minds."

These decisions, especially if the embryo is viewed as a human being, can have tremendous moral implications. Yet they're generally overshadowed by details about other aspects of the IVF process.

Focus on process, children

Though the embryos hold tremendous value to those entering the IVF process, their focus is ultimately on the children they hope will result. And because most fertility clinics will store the embryos for three to five years, and indefinitely if annual storage fees are paid, it's not a pressing issue.

But it's before the embryos are created that David L. Stevens, MD, executive director of the Christian Medical Assn. in Bristol, Tenn., believes more attention is needed. "Unless there's a way to let these children be adopted, the best thing is prevention," he said. "We need to prevent the problem so we don't have this quandary."

One way to do that would be to put more effort into finding a technological solution that would enable eggs to remain viable after freezing and thawing. "No one's complaining about destroying ova or destroying sperm," Dr. Stevens said.

Dr. Penzias also believes the number of frozen embryos will decline as physicians become better at identifying embryos that are likely to become babies. This would enable them to choose the best embryos to implant into a woman's uterus, reducing the risk of a multiple pregnancy. "We'll also freeze far fewer embryos because we'll only freeze the ones that could become babies," he said.

Currently, however, there is no pressure for fertility clinics to limit the number of embryos that are frozen.

"Most programs have sufficient storage space," said James Liu, MD, director of the division of reproductive endocrinology at the University of Cincinnati. "It hasn't reached a crisis point."

Consent forms, not contracts

As these embryos wait indefinitely in storage, it becomes more and more likely that the circumstance of those who created them will change. Even though most couples sign a consent form agreeing on the fate of the embryos should they separate, there's no guarantee that it will be enforced.

"We tell the couples right now that the courts ultimately hold the final card," Dr. Penzias said. "We're asking you now based on your best guess of what you would want. We can't promise you that this will be enforceable later."

Not surprisingly, there have already been three embryo-custody disputes at the state supreme court level. In each one of them, the woman sought and was denied the right to use leftover embryos created prior to a divorce.

The first case, in Tennessee, was decided in 1992. Mary Sue Davis wanted to use stored embryos, created with her former husband, Junior, to have a child. He wanted them destroyed. The Tennessee Supreme Court, in nonbinding language, said that if there had been a prior agreement it should be enforced. But it also admitted it would not force the transfer of embryos even if one had been in place, stating that "ordinarily the party wishing to avoid procreation should prevail."

A New York case, decided in 1998, involved a divorce-related dispute between Steven and Maureen Kass. They had signed a form stating that if they no longer wanted to initiate a pregnancy, the embryos should be used "for approved research." But Maureen wished to use the embryos for another IVF procedure. The New York Court of Appeals ruled that their prior agreement should be enforced.

In the most recent case, involving parties identified only as A.Z. and B.Z., the consent form for cryopreservation specified that in the event of a separation the wife would be allowed to implant any leftover embryos if she so desired. After their divorce, however, the husband sued to block her use of the embryos.

This spring, the Supreme Judicial Court in Massachusetts did not enforce their prior agreements. "As a matter of public policy, we conclude that forced procreation is not an area amendable to judicial enforcement," and courts "will not enforce contracts that violate public policy," the court stated in its opinion.

"What the court didn't acknowledge," said Gretchen Van Ness, the woman's attorney, "was that they were forcing my client not to have children." Her husband, in contrast, had not gone through the extreme measures she had to produce the embryos in the first place. In addition, he would still be capable of fathering children.

Added John A. Robertson, a law professor at the University of Texas at Austin and co-chair of the American Society for Reproductive Medicine's ethics committee: "Failure to enforce these agreements hurts the women who go through the procedure in reliance on it."

Looking for solutions

As more and more embryos are placed in storage, custody fights are expected to become more common. This has led some to call for additional regulation of the industry, either at the state level, by adoption of common model legislation, or at the federal level. Others believe that embryo storage and use remains within the realm of the medical profession and, as such, any oversight should come from its specialty associations.

The divorce disputes aside, many physicians believe that the National Institutes of Health decision this summer to begin funding stem cell research gives infertility patients a another option for their stored embryos.

"It represents a new opportunity, however sadly created," said Philip Reilly, CEO of Interleukin Genetics Inc., a Waltham, Mass. biotech company, and past president of the American Society of Law, Medicine and Ethics. Such research has the potential to result in treatments or cures for many diseases. However, it requires the destruction of the embryo.

"Here's where we get into the question about whether the interest in protecting life and health of many people with diseases will outweigh the symbolic, expressive costs of using leftover embryos as sources of those stem cells," Robertson said. "Obviously, if one takes the view that the embryo has intrinsic moral value, has interests and rights itself as a person, destruction to get stem cells would clearly be wrong."

Dr. Stevens is among those who believe that using embryos to create stem cells is inherently wrong. "Life begins at conception," he said. "This is a human being. It needs to be valued and treated with respect."

For him, the only option is to "address this as an adoption issue."

But even though many clinics offer donation as an option, it's something that couples rarely choose. Nightlight Christian Adoptions in Fullerton, Calif., is working to change those statistics. More than three years ago the agency developed a program called "Snowflakes," based on the belief that "like snowflakes, each embryo is fragile, unique and the most beautiful of God's creations." Since then, five babies have been born through arranged "adoptions" of embryos and three more are on the way.

"We use the adoption language and materials with the hopes of setting precedent that someday the court will say embryos need to be handled like any other child," explained JoAnn Davidson, Snowflakes program director for Nightlight Christian Adoptions.

If the statistics at Dr. Stillman's center are any indication, the option of donating to other infertile couples has yet to catch on. In general about 75% of the frozen embryos are discarded, about 25% are donated for research and few, if any, are given up for adoption.

Debate focuses on payments for egg "donations"

There is little debate surrounding the status of a woman's oocyte. It is simply viewed as an entity capable of producing life, but lacking intrinsic moral value on its own.

However, considerable attention has been focused on both the payments that some egg donors are asking for their so-called donation and the prices some recipients are offering to obtain a donation from a woman with the desired physical and intellectual attributes. Though unconfirmed, sums of up to $50,000 or more have been offered in advertisements.

In August, the ethics committee of the American Society for Reproductive Medicine, in a report published in Fertility and Sterility, tried to draw a line between the selling and donating of eggs.

Citing both the physical and psychological burdens donors endure, the report doesn't come out against compensation for these women. Instead, it says that "compensation based on a reasonable assessment of the time, inconvenience and discomfort associated with oocyte retrieval can be distinguished from payment for the oocytes themselves."

This compensation should not be based on particular human traits. Further, it concludes that sums of $5,000 or more "require justification" and those above $10,000 "go beyond what is appropriate."

The report also addresses the issue of egg sharing, whereby a couple receives a discount for in vitro fertilization treatment if they agree to donate eggs to another couple. In addition, it emphasizes the need for physicians to treat egg donors as they would other patients and suggests that programs should note the burdens and risks as well as the financial or other benefits in their advertisements for oocyte donors.