Assisted Reproductive Law

 Cryo-Preserved Embryos
Lynn M. Swank
October 2002

 Recent estimates indicate that more than 100,000 human embryos are currently preserved in cryo-storage in the United States alone.   Many of these are being held for use by the genetic parent or parents but a significant percentage are no longer needed by the original intended parent and decisions must be made about their continued existence.

 Modern technology now makes possible the union of sperm and egg (ova) outside of the body of the human mother.   The egg may be removed from the intended mother or it may come from a donor. The sperm may be that of the Intended Father or may be that of a Donor. This creates a huge new classification of potential relationships which do not fit into any traditional nuclear family pattern.

 As a part of the in vitro fertilization procedure, the fertilized ova may be placed in frozen storage in the form of zygote, blastomere, pre-embryo, or embryo. The quality of the reproductive cells and the preferences of the embryologist are key factors in this choice. What is important is that the embryo has developed to a point where, if thawed, there is a substantial chance that the embryo can be implanted into a human female’s body and gestated through a normal length pregnancy. Unlike the tissue rejection problems of most other types of ‘organ’ transplants, the implantation of this embryo into a female who is not genetically related is generally possible.

 If a couple who wish to be parents have gone through the procedure of removal of the ova (from donor or intended mother) and obtaining sperm (from donor or the intended father), and the medical process has united the cells into a fertilized state,  then the embryos are scheduled for current use or frozen. If, for example, a couple has ten embryos frozen for later implantation and they become pregnant and reach their desired family expansion having used only six of those embryos, then there remain four more in frozen state for disposition in some other fashion.

 Storage of these embryos is a very specialized and highly technological function. The depositing ‘parents’ are trusting the facility to maintain the mechanical conditions necessary for appropriate storage. More importantly, the depositors must have confidence that those embryos will not be misappropriated, lost, sold, damaged or contaminated. Concern about misuse of an egg, sperm donation, or embryo is a serious stress for persons who are using assisted reproduction.

 Now, from the perspective of an attorney,  there are other problems with these stored embryos when they are no longer needed by the original intended parents. For example,  if the genetic parents created more embryos than were needed for their personal purposes, then this couple may have joined the ranks of the thousands of United States citizens who have embryos in storage and some serious choices to be made.

 Storage itself is expensive and very technical. Some reproductive clinics provide this service or there may be outside storage facilities which are used. The situation is very different from  placing unused furniture into a warehouse or putting holiday gifts on layaway.The decision to stop storing these embryos requires certain philosophical commitments.

·        Should the embryos be destroyed – allowed to expire so that they are no longer the potential of living beings

·        Should the embryos be donated for ethical, appropriate scientific research?

·        Should the embryos be donated for use in medically therapeutic programs

·        Should the embryos be transferred to other infertile persons, and, if so, should they be known individuals or anonymous strangers?

 Most patients worry at some stage during their assisted reproduction treatment about possible misuse of their eggs or sperm. If dealing with a trustworthy, reputable clinic, this is a passing concern. When making a decision to share cryo-preserved embryos with other prospective parents, those fears must be confronted more directly. Would the patient be comfortable in later meeting up with a full sibling to their own child? Do the children deserve to know about the existence of each other? Is there a sense of loss or grief involved?

 More complicated yet,  many of these embryos have been created from donor ova or sperm. The Donor may have legal rights to consent or refuse to consent to the transfer of the embryo to someone beyond the original intended party. There have been lawsuits of several different levels in various parts of the country because of the degree of parental rights which should have been transferred in connection with the donation of ova, sperm or embryos and were not. Decisions in this area of procreation are very complex and should be made as early in the process as possible,  while the issue is ‘creation’ rather than ‘destruction’ of something already alive.

 There is at least one not-for-profit organization which is encouraging the donation of cryo-preserved embryos so that they may be used by other infertile couples. If this is a concept which is acceptable to the ‘parent’ of the embryo,   then it may be worthy of serious investigation. This law firm can assist in making the appropriate introductions so that inquires can occur.