\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0With more and more patients turning to in vitro fertilization (IVF) to build their families, it's inevitable that legal issues related to IVF treatment will need to be resolved in the courts. This area of law is still largely unsettled, with only a handful of relevant appellate decisions across the country. One particular aspect of IVF law that has arisen only in very recent years relates to abandoned embryos.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Currently, many facilities feel obliged to continue maintaining abandoned embryos indefinitely because there is no clear legal path that allows for disposal of the tissue. However, continued storage is expensive, and ultimately the costs must be passed along to other patients. Thus, abandoned embryos often remain in expensive legal limbo. From a legal viewpoint, what are the best practices in this field? How can legal practitioners identify and address issues to assist clients with quick resolutions to indefinite storage.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0NATURE OF THE DILEMMA
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0IVF is a highly technical type of fertility treatment that involves the stimulation of the female partner's ovaries with hormonal medications in an attempt to generate multiple eggs at one time. These eggs are then surgically retrieved and combined with the male partner's sperm in the laboratory, with the hopes that fertilization will take place. Any resulting embryos are cultured in the laboratory, typically for five days, and one or two embryos are placed in the female partner's uterus with the goal of producing a viable pregnancy1 Any additional potentially viable embryos can be cryopreserved (frozen) for future use. It is notoriously difficult to predict at the beginning of an IVF cycle how many embryos will remain for cryopreservation. And both doctors and patients often desire extra embryos to reduce the expense and, for the female partner, the pain and inconvenience associated with a fresh IVF cycle.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Equally difficult is predicting which embryos will actually result in a viable pregnancy. Thus, some cryopreserved embryos may be used relatively soon following a failed cycle that did not result in a pregnancy. This short term storage, which is often for only a few months, will typically be at the medical clinic that performed the IVF procedures. Other embryos will be stored for much longer, often because the woman becomes pregnant and the remaining embryos won't be needed until the couple is ready for their next child. Long term storage may be either at the medical clinic or at a dedicated cryobank that is independent from the medical facility. For the purpose of this article, both of these entities will be referred to as "facilities" .The couple may ultimately decide not to pursue further treatment. Typically, this decision is made following a successful pregnancy that completes their family, but it may also come about due to health reasons, divorce, death, or simply a desire to discontinue treatment. Or the couple may feel unable to make a decision about whether to try again, and delay the decision-making indefinitely. In any event, they still have an obligation to continue to pay storage fees, which average about $500 per year at cryobanks, or easily twice that amount at medical clinics. The dilemma arises when patients simply stop paying the storage fees and are unresponsive to bills and other communications sent to them. These embryos are colloquially referred to as "abandoned".
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Facilities are understandably reluctant to unilaterally dispose of these abandoned embryos without written permission from the patients. After all, the embryos are not easily replaceable and, in some cases, it may be impossible for the patients to produce additional embryos. For example, a woman may have undergone IVF treatment at an advanced age or just before starting chemotherapy which rendered her unable to produce more eggs. Yet, continued storage costs the facility money because the embryos need to remain in temperature controlled and continuously monitored storage tanks, since even a slight deviation in temperature can leave the genetic materials useless. When some patients do not pay their storage bills, it's inevitable that the costs will have to be borne, to some extent, by other patients.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0SCOPE OF THE PROBLEM
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Because there are no national statistics kept on abandoned embryos, it's impossible to conclusively determine the total number of such embryos currently in storage. Older estimates placed the number of stored embryos at close to half a million, but most were stored for patients who were continuing active fertility treatment.2 Only a small percentage were officially designated as abandoned, but this type of analysis fails to account for the fact that all patients in the active treatment category will ultimately stop treatment and some of those patients will subsequently abandon their embryos.3 Thus, the ultimate number of abandoned embryos will accumulate over time. While the number of stored embryos today is likely even higher given that more people are undergoing IVF treatment and laboratory techniques have improved to allow for better culture of embryos, an accurate figure still remains elusive.4 Also, while embryos destined for patient use or other designated disposition (as further described below) move through the system, abandoned embryos can remain in the system indefinitely and become a nagging problem for facilities.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It is clear that this issue is of concern for facilities struggling to use their available storage space most efficiently. Given the routine maintenance, observation, and diligent record keeping required, as well as the limited physical space available at some IVF clinics, even hundreds of abandoned embryos at one facility can pose a significant problem. Yet, facilities remain reluctant to dispose of abandoned embryos without explicit patient consent. As one IVF program director noted "We'll keep [abandoned embryos] forever... It's not beyond imagining that a couple could show up after five years in Japan and say, 'We're back; we want our embryos, ' and what would we do then?"5 At least one facility has gone to the lengths of hiring private investigators to track down patients who have abandoned their embryos.6 Another facility spent 15 years diligently tracking down embryo owners to obtain disposition consents, and yet still had 1, 000 abandoned embryos in storage.7 Ironically, patients may not realize that their nonpayment causes such consternation, incorrectly assuming that the embryos were destroyed promptly after the storage bill became overdue. As one former lab director explained about her outreach to patients, "We called or wrote everyone we could call or write and surprisingly, the reaction was often, 'Oh, I assumed those embryos were discarded years ago when we stopped paying for storage'."8
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a conversation with the author, the former director of the sole facility in New Hampshire estimated that the facility had approximately 700 embryos stored for 150 patients, with only a small number designated as abandoned at any given time9 However, many New Hampshire residents seek IVF treatment out-of-state and thus accurately calculating the number of embryos stored for New Hampshire residents is not realistically possible. What is clear is that lawyers need to specifically inquire of individual clients to determine whether they have embryos at risk of being deemed abandoned.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0DISPOSITION OPTIONS FOR ABANDONED EMBRYOS
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0When embryos are abandoned, the facility has a number of options. The legally safest course is to store the embryos indefinitely, accepting the burden as one of the costs of doing business. Another alternative is to discard the embryos but, due to the unique nature of embryos as a potential for human life, many facilities are reluctant to do this without a clear written directive from the patients. However, patients who ignore their bills are similarly likely to ignore pleas from the facility to execute written consents for destruction.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Between these two extremes are alternatives that are often chosen by patients who take an active role in disposition of their embryos. Extra embryos can be used for non-procreative purposes, such as research or training, or for procreative purposes by different patients (often termed embryo donation or, less accurately, embryo adoption). Some commentators favor the release of abandoned embryos to other patients in need for procreative purposes, in order to avoid waste of these scarce resources.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0DONATION FOR PROCREATION
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0However, donation of abandoned embryos is highly controversial. There is a long-standing ethical principle underlying donation of human tissue that the donation must be made with the explicit consent of the patient.10 Only contemporaneous consent for embryo donation can truly satisfy this requirement, as it implicates the kind of thoughtfulness that our society has deemed important when making such immense decisions. Nonetheless, some observers have suggested that abandoned embryos are no longer the property of the original patients, with all rights to the embryos having been ceded to the facility, which can make all dispositional decisions.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In recent years, one medical...