Many are familiar with in-vitro fertilization techniques. The woman is stimulated with hormones to produce multiple follicles, containing oocytes, or eggs. This is done to increase the chances for pregnancy. In a typical IVF cycle, a woman may receive anywhere from two to as many as six embryos in her uterus. However, frequently there are a number of oocytes, or eggs that remain after the initial IVF cycle. These oocytes are fertilized and stored in suspended animation through cryopreservation. The embryos are kept frozen theoretically for the future use of the couple who created them. However, recently, there have been a number of legal cases that have brought ethical and moral issues regarding the disposition of these embryos into the forefront.
Most states in the United States have no laws with regard to theft of embryos. California is one of the few states that do have such a law. Penal Code 367g was enacted in 1996, after the U.C.I. fertility scandal became public. I was actively involved in getting this legislation promulgated and passed, testifying before both the Senate and the Assembly in the State Capitol. The Bill was sponsored by Senator Tom Hayden and became law in July 1996. It makes it a felony to steal human eggs or embryos.
However, this does not speak to the many dilemmas regarding extra embryos which are now stored all over the world. In Great Britain, embryos are stored for five years and then destroyed. In most South American countries, the laws prohibit the storing of frozen embryos. This is because in most South American countries, the laws are impacted by the state religion. The exception in South America is Bolivia, which permits the storage of frozen embryos.
The existence of thousands upon thousands of pre-embryos in cryopreservation raises a number of potential dilemmas. Some of these potential problems have been litigated in the courts. For example, what happens to the embryo when the couple divorces? Does the husband or wife have a greater interest in the embryo? Do they own the embryo jointly, or does the embryo belong to the one who would give it life? These issues were addressed in the case of Davis v. Davis (824 S.W.2d 588{Tenn. 1992}). In the David case, a Tennessee couple used the high tech procedure to produce a number of fertilized ova, which were cryopreserved for future implantation. The couple then divorced, and the husband did not want to have children with his former spouse. The wife then petitioned the court for custody of the pre-embryos, because she believed that these frozen embryos were her last chance for having children. The trial court awarded custody of the embryos to the wife, relying on the best interest of the children theory. The court reasoned that the individual who would give life or the potential for life to the embryos was acting in the embryos best interest. The judge’s ruling was reversed by the Appellate Court and later affirmed by the Supreme Court. The Tennessee Supreme Court reasoned that treating pre-embryos as human life would be inconsistent with the principals established in Roe v. Wade, governing abortion.
Physicians, who specialize in the area of advanced reproductive technology, or reproductive endocrinologists, differ in their approach with regard to the treatment of excess embryos. There are a number of physicians who simply refuse to perform embryo transfers from one couple to another, citing ethical and moral considerations. Another group will perform embryo transfers from one couple to another, but refer to them as embryo adoptions. They follow the same protocol as one would for an adoption in a situation where an embryo is transferred from one couple to another. Then there are other physicians that do no distinguish between embryo transfers and egg transfers between patients. These physicians are willing to transfer embryos that have been donated, with little or no inquiry to the recipient, other than basic medical history necessary to perform the medical procedure.
Doctors at many clinics perform what they term embryo adoption. This is the transfer of an embryo to an infertile couple. The embryos are either from a couple that has donated the embryo or from an anonymous egg donor and anonymous sperm donor. The doctors who take part in these procedures believe that apart from the fact that embryo adoption occurs far earlier than baby adoption, there is otherwise little difference between the two processes. In Vitro Fertilization by Geoffrey Sher, M.D.
The ability to create embryos and store them via cryopreservation has been around now since at least 1986. As a result, hundreds of thousands of embryos remain in storage long after a couple as created them. A couple that have gone through IVF and were successful in achieving a pregnancy and birth are usually busy raising the child, and not preoccupied with the embryos frozen in a tank. The couple relies on the honesty and integrity of the doctors and laboratory personnel to essentially baby-sit their future children. I have yet to meet or speak to a couple who believes that their embryos were not safeguarded and stored for their future use.
On the otherhand, doctors who assist in the creation of these embryos may be tempted to regard these embryos as their creation. Certainly, in the case I have been involved in for many years involving U.C.I. now well know as the U.C.I. fertility scandal, the doctors at the clinic acted as though they had a proprietary interest in the embryos stored in tanks in their biologists office.
The doctors at the clinic at U.C.I. as well as other employees of U.C.I. assisted in the freeze and thaw and ultimate transfer of embryos. However, these transfers were not always to the patient who created the embryos and intended to have them stored exclusively for their own use.
The U.C.I. fertility scandal was exposed in 1995 when the Orange County Register reported that eggs (unfertilized) were transferred from unknowing patients to other patients for profit. This case blossomed into approximately 120 filed cases involving egg misappropriations, most of which by this time have been settled with U.C.I.
However, when the clinics at U.C.I. closed, there were a number of tanks containing frozen embryos that had to be relocated. In 1995, one of the doctors involved in the scandal called in a favor and California Cryobank in Los Angeles took possession of the tanks of frozen embryos and frozen sperm. The tanks were inventoried before they were shipped to California Cryobank. Despite four years of requests for payments for storage of the embryos, U.C.I. refused to contribute any money. When the case was ready to be tried, U.C.I. agreed to settle the case by paying a small amount of the storage fees. The other part of the agreement was that the patients who had embryos stored at the facility would be notified that they had embryos stored, and that they had thirty days to decide to move them or they would be destroyed.
What is significant about this is that during the four years of representing clients in the egg fertility litigation, I suspected that embryos were also taken and sold. However, there were never enough documents available to prove my suspicions. The doctors who were U.C.I. tenured faculty professors are under federal indictments and have fled to Mexico and Chili.
I obtained the inventory, tank logs and other supporting documents and began what was to be a six month long audit of the fertility facilities associated with U.C.I. What I discovered was that hundreds of couples – as many as 500 couples may be victims of embryos misappropriations. There are hundreds move that have discrepancies in their records that are unexplained.
Last month I filed the first of what I anticipate will be many lawsuits against U.C.I. for the theft of human embryos for sale to infertile couples. The case I have filed and others subsequently filed are clearly cases that have documented embryo theft. For example, in one case, a woman was told that four of her frozen embryos were thawed, but that only three survived, and therefore only three were transferred to her. In fact the documents verify that one of her embryos not only survived the thaw, but also was indeed transferred to another patient who was in the next room at approximately the same time.
The impact of all of this is emotional, as well as ethical and legal. Emotionally, many of the couples I represent never conceived and do not have biological children. Some of them adopted children. These couples are now discovering that there may indeed be biological children living a few miles away, or even living in a foreign country, and being raised in a totally different environment. Ethically, having an abundance of frozen embryos and a shortage of donors presents a temptation to some people in the field to misappropriate and profit from these microscopic beginnings of life. Legally, we are faced with the reality that there are no laws nation wide to regulate the fertility clinics, or to provide criminal penalties for those professionals who do cross the line.
The need in the field of reproductive medicine is not only ethics and morality, but laws. Certainly morality and ethics cannot be legislated. However, this area of medicine and high tech fertility procedures has outpaced the laws, which reflect only traditional ways of "making babies". It’s time that the legislature move into the twenty-first century and define what we as a society have accepted as a usual course in the treatment of infertility. This would mean re-defining "mother" and "father" to include the variety of options available to patients at fertility clinics. Patients who do go through these procedures should take care to protect themselves by hiring an attorney who is an expert in the field of reproductive medicine. By providing for contingencies, and transferring parental rights through such legal counsel, couples will avoid many of the heartaches later. Unfortunately, nothing can prevent the heartache of leaning that your embryos, which were to be in safe keeping, were sold off to the highest bidder.
Copyright 2000. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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