Abandoned Embryos

July 31, 2010Carole 5 Comments »

The issue of abandoned embryos may be the most difficult issue that arises from using IVF. It seems impossible that given the immense effort and sacrifice IVF patients make to produce embryos that any of these embryos could ever be abandoned. But about 5% of embryos created with the best intentions to make a baby end up in limbo.  The RAND think tank and the Society for Reproductive Technology (SART) published a joint paper on the number of cryopreserved embryos in the US. An open access summary of the paper can be read here. The popular press jumped on the fact that just under 400,000 embryos were in storage and some of the reporting wrongly suggested that many of these embryos were abandoned or available for research. In fact, the RAND report made very clear that 88.2% were in storage in anticipation that they would be used by the IVF patients who created them for their own family building efforts. The remaining embryos were in storage pending donation to other patients (2.3%), discard (2.2%), research (2.8%) and other (4.5%). The “other” category contained the embryos that were in limbo due to loss of contact with a patient, patient death, abandonment, and divorce.

What to do with these embryos that exist in limbo? This is becoming a major problem for IVF clinics that have been around for a decade or more, since these embryos continue to accumulate in storage over time.

Every year, a number of patients do not decide what to do with their embryos. What are the reasons that patients don’t decide the fate of their embryos? Why is this decision so hard?

Couples no longer agree on disposition. Unfortunately, divorce brings out the worst in people. Just like with living children, embryos can become spoils of war in divorce. In a recent court case, a divorced couple could not agree on the disposition of their embryos. Both wanted the embryos to be used, but the ex-husband wanted the embryos donated to another couple and the ex-wife wanted the embryos for her own use to create a sibling for the first child the couple had together in happier times.  Interestingly, the law decided to uphold the couple’s original choice in the storage contract which said that they would discard the embryos in the event they could not agree on disposition. This result is consistent with other legal decisions in which the court strongly supported the right of  a person not to become a biological parent against their will.

Death of both patients who created the embryos. This is an unlikely scenario but can happen. As crazy as it sounds, if you have embryos in storage, you should consider their disposition in the case of your death when you are revising your will. In most cases, in the absence of any financial means to continue storage, orphaned embryos will eventually be discarded by the clinic.

Financial. It costs money to store the embryos and storage fees are almost never covered by insurance. A fairly typical storage fee for an IVF clinic is $400 per year or a little over $1 a day. Some long term storage facilities like Reprotech charge less because storage is all they do and they can offer volume discounts. We often referred our cancer patients to Reprotech, a long term storage facility specializing in reproductive “samples” including eggs, sperm , embryos and ovarian tissue. Most IVF clinics have limited storage capacity so typically only provide storage for active patients who are planning to resume treatment in a year or two and add to their families by thawing and transferring their stored embryos. In our contract, we promised to provide storage for five years at our site because that was enough time for most patients to complete their families.

Ethical issues that arise around the financial costs of embryo storage. If patients told us they wanted to donate their embryos to other patients or to stem cell research (the two non-discard options) we suspended storage billing for several months to provide some financial breathing room while the arrangements were being made to accept the embryos at another facility and to transfer embryos out of our storage. With the decision to discard, billing was stopped as soon as the notarized written authorization to discard was received, so we wanted non-discard decisions to have the same immediate financial relief.

The financial relief we offered was only temporary because the real costs of storage could not be absorbed indefinitely. There is no lab fund to support the continued storage of abandoned embryos and pay for the real costs of providing storage including liquid nitrogen, supplies, equipment and on-call payroll expenses for monitoring embryos storage tanks 24/7. Storing abandoned embryos raises another ethical issue.  Is it fair to patients who are paying their storage bills on time every year to have their payments subsidize the storage costs of non-paying patients who have abandoned their embryos?

Rarely, some clinics have taken the choice away from the patients and decided to remove these embryos from storage by thawing and transferring them to patients who want children. An infertility program in Spain placed abandoned embryos with other couples, creating pregnancies without the consent of the IVF patients that created the embryos. Apparently, British couples who created and stored their IVF embryos with the Institut Marques clinic on the outskirts of Barcelona participated in an embryo adoption program without their knowledge or consent. Since the program’s start in 2004, of 317 British couples treated, 26 couples agreed to embryo adoption and 114 who could not decide what they wanted to do were enrolled in the embryo adoption program by default. The Spanish clinic sent patients annual paperwork asking what they would like to have done with their embryos. Failure to return the annual paperwork resulted in the embryos becoming available for adoption at the Spanish clinic’s discretion. British couples may have assumed that Spanish law was the same as British law,  requiring patient consent before embryos can be donated and ignored the paperwork, thinking the embryos would be discarded. Apparently, more than 460 babies have been born around the world from embryos adopted out by the Spanish clinic.

The American Society for Reproductive Medicine has supported the rights of patients to make these decisions but also recognized that clinics had a right to eventually discard abandoned embryos. In their Ethical Opinion, The Disposition of Abandoned Embryos, ASRM strongly supports the rights of patients to decide the fate of their embryos. However, in the event of abandonment, when patients fail to make a decision, clinics are permitted to eventually discard the embryos, but clinics can not donate the embryos for family building without the written consent from the patient or couple who created the embryos. Embryos in limbo often end up being discarded, because that’s the only option left when the clinic has no room, no slush fund to continue storage and no consent for other options.

Abandonment as the no-guilt option. Some patients who abandoned their embryos and were finally tracked down have  told me that they assumed we would have discarded them years earlier and were surprised at how persistent we were in trying to track them down and get them to make a decision. Other patients have told me that if we simply discarded them as a consequence of abandonment, they would feel less guilty for discarding them in this passive way. The problem with this approach is that it’s not the lab’s or the program’s responsibility or right to make these decisions. Every family comes to fertility treatments with different religious, ethical and cultural perspectives. Some patients choose to limit the number of eggs that are fertilized to three or less to purposefully eliminate the possibility of excess embryos being created in the first place. As an embryologist who has a duty to do everything to optimize a patient’s chances of pregnancy, I can’t recommend that approach because it decreases the chances of pregnancy but I respect and appreciate that the patient thought carefully about their options and made the best decision for their family based on their religious, ethical or cultural perspective.

The truth is that most embryologists would prefer not to discard embryos. After all, regardless of our varied religious, ethical and cultural perspectives, we have invested considerable professional effort to create and store the embryos, hoping that they would become children and make our patients happy. While we don’t pretend that we have the same emotional investment that patients have in their embryos, it saddens most of us to see them discarded. Hopefully, we will perfect egg freezing and reduce the cost of IVF so that we can fertilize fewer eggs and be able to do more cycles using frozen eggs instead of frozen embryos. That would practically eliminate creating embryos that might end up in limbo.

The view from inside the lab. When I was hired to direct an IVF clinic that had been around for over ten years, I inherited the abandoned embryo problem in a big way. I was able  to work with the hospitals ethics committee and legal counsel to determine what to do about the abandoned embryos in storage and how to prevent this accumulation of embryos in storage in the future. I felt we needed a mechanism for getting an “advanced directive” from patients regarding what to do with their embryos in the event of various scenarios including divorce, death and abandonment of stored embryos.

Advanced directives for embryo disposition. We asked patients to sign a storage contract which documented their choices for embryo disposition in the case of their death, divorce or abandonment of their embryos.  Patients could change their mind about these choices and resign their storage contract as often as they wanted because obviously, patients can have a change of heart about their original choices. What constituted embryo abandonment was spelled out in the contract and required a sustained period of both no patient contact and no payment for storage. The lab had a responsibility to attempt to contact the patient numerous times by various means to ensure that embryos that the patients’ still wanted were not deemed abandoned and discarded.  Even after embryos were deemed abandoned, embryos were not immediately discarded but held for an extended period of time to minimize the chance that patients would “reappear” to claim their embryos.

ART is an inexact science. The same medication doses given to two patients can result in very few eggs or an excess of eggs being available for fertilization. Fertilization rates and embryo development rates vary among patients and we can never predict how many embryos will survive and meet the criteria for transfer or freezing. Having some embryos left over for at least one frozen attempt is cost effective for patients who may have only one chance at IVF because IVF is expensive and insurance coverage is spotty at best.  The down side of this approach is that your family may be complete and you may still have embryos in storage, forcing you to make some hard decisions.

© 2010, Carole. All rights reserved.

5 Responses to this entry

  • gingerandlime Says:

    This is fascinating.

  • David Diaz Says:

    Embry abandonment was one of the reasons that motivated our program to perfect or egg freezing technique. We suggest that women with good ovarian response during IVF inseminate 3 or 4 oocytes and transfer the best 2 embryos. This is in agreement with ASRM guidelines regarding the number of embyos to transfer. This has been well received by IVF patients in general but especially those who are uncomfortable storing a large number of frozen embryos or eventually having to discard their frozen material. Your thoughts about discarding from the embryologist’s point of view is insightful and in agreement with our own program. Since our frozen egg pregnancy rate of 53% is comparable to out fresh embryopregnancy rate of asbout 60%, we do not see a great discrepancy in making this recommendation to patients in the favorable age group. Our disposition consent requires all IVF patients to decide the embryos’ fate and additionally the patients sign a formal “business-like” contract, listing the conditions for the continuation of storage.

    David Diaz, MD, West Coast Fertility Centers

  • Sam Says:

    You might be interested in the related law in the state of Louisiana. Abandoned embryos are made available to other infertile couples whether the original patient couple consents or not. If you stop paying your storage bill they become available for adoption. The patient has no choice in the matter.

  • Carole Says:

    You raise an interesting point. A summary of game and embryo disposition law can be found at http://www.ncsl.org/default.aspx?tabid=14379. It’s not clear to me from the wording how high (or low) the bar is for determining that parents have abandoned their embryos. However, once embryo abandonment is determined, Louisiana law requires that the embryo be offered up for “adoption”. Maybe an attorney could weigh in?

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