Abandoned embryos: the clinic’s right to dispose

December 27, 2013Carole 1 Comment »

One of the unintended consequences of successful IVF treatment is an “excess” of embryos left in cryostorage after the patient’s family size is complete. Most patients in this situation choose one of these options: store indefinitely (and pay storage indefinitely), donate the embryos to a research program, donate the embryos to the clinic for technical training, donate the embryos to another person or couple who are trying to conceive or discard the embryos without use. A small percentage of patients duck the decision all together and simply walk away from the embryos and discontinue contact with the clinic and payment for embryo storage.

Embryo abandonment is problem for many programs, especially those that have been around for 10-20 years and offered embryo storage since the beginning. Imagine that if every year 5% of the patients in a program abandon their embryos, over time, you can accumulate lot of unclaimed embryos.  For the clinic, that creates additional un-reimbursed embryo storage costs to maintain storage of embryos that are unwanted by the people who caused them to exist. Who pays for the added costs? These costs are passed on in increased fees for all storage patients who do pay their bills, which is hardly fair.

Other patients might very well want these abandoned embryos but there is no legal way to give embryos that belong to one couple to another unless both parties explicitly agree to this in writing. Lawyers make a living devising these agreements. Clinic staff who try to do this without patient consent go to jail or remain fugitives from justice nearly 20 years later…

Some programs are better prepared for embryo abandonment than others. In my Indy program, we worked with our hospital’s ethics committee and lawyers to create a proactive plan to deal with this problem.  These experts helped us create an embryo storage agreement that contained an advance directive option for disposition of embryos. Every new IVF patient was required to sign an embryo storage agreement (or alternatively, a document that said that they declined cryostorage), before the egg retrieval. We didn’t want to be caught with embryos in the lab without an agreement for their storage and ultimate disposition.

The cryostorage agreement we used defined the term embryo storage,  defined under what circumstances embryo cryopreservation and storage would be provided, and defined the criteria by which an embryo would be deemed to be  abandoned. Embryo abandonment boiled down to failure to pay storage costs for two years. In practice, we routinely kept abandoned embryos in storage for another three years for a total of five, just in case the patients reconsidered, and decided that they wanted their embryos after all. But if still unclaimed after five years, and patients did not respond to our attempts to contact them, we removed their embryos from storage without use.

Before the first embryo was created for a patient, let alone used to start a pregnancy, we asked patients what they wanted the program to do with their embryos if they abandoned them. I should also say that we asked patients to decide in advance about disposition in case of other possible  life events such as divorce, death, mental incapacitation etc.

So this pro-active, pre-emptive process allowed complete transparency and complete autonomy by the patient. Patients could choose 1) whether they would use cryopreservation services in the first place, 2) whether they will be responsible for actively deciding on disposition when the time comes or abandon them, 3) how the embryos would be disposed if they were abandoned, and 4) most importantly, they could change their mind about their disposition options at any time simply by signing a new contract for storage.  The disposition options were more limited for abandoned embryos. We did not offer embryo donation for procreation as an option for abandoned embryos because the ethics board and clinic owners agreed that this choice clearly required a more active, thoughtful process in which both parties (donating and receiving)  agreed to the transfer of embryos for the good of the future child, and not as a passive, default option.

Maybe it was due to Midwest practicality, but this process worked very well for us. We never had a patient reappear and ask for their abandoned embryos after they were discarded–probably in part because abandoned embryos remained in storage for five or more years -before they were actually discarded. Anyone who wanted their embryos had ample time to make that known to us.

Prior to this proactive process using the storage contract, we still had to do something with our surplus of abandoned embryos that arose over the previous 15 years of the clinic’s existence under different ownership. We followed the guidelines of our hospital ethics committee as well as legal precedence  in the United Kingdom, both deemed it ethical for the clinic to dispose of embryos that were abandoned after 5 years.

We did repeatedly attempt to contact all patients on the abandoned lists- but this was often made impossible because they did not update their contact information when they moved. Loss of contact with the clinic was one criteria for abandonment. 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”. No one I spoke with was particularly pleased or relieved to find out their embryos were still in storage. Many were apprehensive that we would require payment of back storage fees. (We didn’t.) I always let them know that the only thing we wanted was their notarized signature on a document that authorized us to discard them in the manner they wanted.  Their choice, not ours. We did not feel comfortable making that decision for patients. Most patients we contacted did ultimately choose a disposition option. Clearly this decision is extremely difficult for some patients.

The five year limit seems to have stood the test of time. Recently, the Montreal Gazette published an article on this topic, which is an interesting read.  ASRM also published an updated version of their Ethics Committee Report, “Disposition of Abandoned Embryos: a committee opinion.”   first published in 2004. The ASRM committee summary sates: “Programs should create and enforce written policies on the designation, retention, and disposal of abandoned embryos. In the absence of program-specific policies, it is ethically acceptable for a program or facility to consider embryos to have been abandoned if at least 5 years have passed since contact with an individual or couple, diligent efforts have been made to contact the individual or couple, and no written instructions from the couple exist concerning disposition. In such cases, programs may dispose of the embryos by removal from storage and thawing without transfer, though in no case should embryos deemed abandoned be donated to other couples or be used in research. This statement replaces the ASRM Ethics Committee document published in 2004 with the same name (Fertil Steril 2004;82:S253). ”

I think some clinics could do more to educate patients about their embryo storage and disposition policies ahead of time before they begin to provide IVF services. Not every IVF cycle results in excess embryos but this possibility and the implications of having excess embryos should be part of the consent process for patients. If your clinic doesn’t bring this up, ask them what their policies are regarding long term embryo storage.

© 2013, Carole. All rights reserved.

One response to this entry

  • Jen Says:

    Good information. My two clinics (one in the south, one on the West coast) also had very specific directives on what we wanted to happen with the embryos including if we divorced or died. I felt covered with their preparedness. 🙂

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