Disposition Of Frozen Embryos: Maryland Court Chooses the Person Who Wants To Use Them

Yesterday I put up a post about a recent case involving posthumously conceived children–which is to say, children conceived with sperm that had been frozen.   You can think of this as a problem created from our ability to keep reproductive materials in long-term storage.    Here’s another storage problem that comes up with some regularity–and also one I know I’ve written about before, though I cannot find where.   (A bit frustrating, I must say.)

Sometimes couples who are splitting up have frozen embryos to deal with.   That was the problem in this instance.  Godlove Mbah and Honorine Anong had been married.   While they were married they created embryos via IVF and a daughter (now three) was born.  There were extra embryos that were frozen for possible future use.  And then the couple split up.   What happens to those extra embryos?

Orthodox Rabbis Endorse Freezing Eggs

Before I turn to the recent comments I wanted to put up a short post about this news items, which fits nicely with yesterday’s post.  As you can easily see, yesterday’s post was about how new technologies have brought us the ability to freeze human eggs for later use.   This development will almost assuredly lead to egg banks that more clearly resembles sperm banks and, one would think, a market for eggs that more clearly resembles the market for sperm.

But the ability to freeze eggs opens other avenues besides those that lead to commercial markets.   As the article I linked to shows, Orthodox rabbis (at least some orthodox rabbis) are encouraging women to freeze their own eggs for later use.    And it makes sense to me that they would do so.

For (some or many?  I do not know) Orthodox Jews, a child is Jewish only if the egg from which it developed was from a Jewish woman. 

One Solution to the Extra Embryo Problem: Craig’s List?

I’ve written about the extra embryo problem in the past.   Basically when people engage in IVF they generally end up with more embryos than the need for their own use.    What to do with extras?

As this story makes clear, there are  a few options;  the embryos can be destroyed, they can be used for research, or they can be used for ART by someone else.   This can be a difficult choice.  For some people the destruction of embryos, whether for its own sake or for research purposes, is unacceptable.   This makes the last option most acceptable, but it brings with it its own questions.   Who should get the embryos?  Who should decide who gets the embryos?   What process should be used?

Some people talk about embryo adoption and while this usually reflects their beliefs about the status of the embryos, it is legally incorrect. 

A Quick Note on the Frozen Embryo Problem and The Florida Primary

Late last year I wrote about the disposition of excess frozen embryos, a problem which has arisen as a result of the widespread use of IVF.  Now Newt Gingrich has drawn attention to this question in the Republican primary election in Florida.   (Fair warning:  I am quoted in the particular coverage I linked to.)

While I do think the question of what to do with the frozen embryos that are piling up in clinics around the world is important, I’m not remotely persuaded that any real light will be thrown on the subject by injecting it into the Republican primary campaigns.   That’s largely because I don’t think they’ll be any real consideration of what makes the question hard.

For many people it’s difficult to categorize frozen embryos. 

Can Posthumous Children Be Heirs?

I’ve written a number of times about the problems presented by children conceived after the death of a man who provides sperm used to create the child.   If you go read those posts you’ll see that in general I’ve been thinking about children conceived via sperm that was frozen before a man died (or in a few cases, harvested just after his death.)   The main issue I’ve written about has been entitlement to Social Security benefits.   The Supreme Court has agreed to review one of these cases and so we’ll have an interesting opinion to digest before the end of the Court’s term.

There’s a recent article in US News & World Reports  that discusses some of these questions, but as the article makes clear, the ones involving frozen sperm are really a subset of a larger set of perplexing cases.  

About Those Extra Embryos

Extra embryos are an frequent and generally unavoidable consequence of IVF.   This means that figuring out what to do with those extra embryos is a fairly common dilemma for those engaged in IVF.   This is reflected in a couple of stories I’ve seen on the web recently.   While sometimes the focus is just on the practice of “embryo adoption” I’d like to think more broadly about the topic for a moment.

First off, consider why the extra embryo problem arises and why it will not go away anytime soon.   

Embryo Case Settles

Last month I wrote about a dispute between two couples over possession of some frozen embryos.   Here’s a report that the dispute has been resolved without further litigation. 

I’m sure it is better for all concerned that the dispute has been resolved through mediation.    But it is worth noting that the ability to settle the dispute privately suggests that the embryos are being treated as property.   Settlement of custody disputes require judicial review, because the state has its own interest in the well-being of children.

Who Gets the Embryos?

In the last week or so I’ve been following an interesting case involving a conflict over entitlement to two frozen embryos.   You can read about it here and here.  The latter story suggests that the case is headed to mediation which means this might be the last we hear of it, so I figured I’d comment now. 

Edward and Kerry Lambert, who live in California, created some embryos.  (I presume their primary purpose was their own ART effort.)  The Lamberts view the embryos as living human children and so would not want to simply destroy eccess embryos. 

In February 2009 they entered into an agreement with Jennifer and William McLaughlin of Kirkwood, Missouri.   The McLaughlin’s shared the Lamberts understanding of the embryos as living children.   At the time the Lamberts had five adopted children, but they wanted to have more children.   As a result of the agreement, four frozen embryos were given to the McLaughlins.  Two were transferred to Jennifer McLaughlin and she gave birth to twins.

The problem is the couples do not agree on the disposition of the two remaining embryos.

How Often Are There ART Mistakes?

One quick note to add to the whole wrong embryo discussion, one that also ties back to an earlier and more general post about ART mistakes.  This story reports that a single clinic in the New Orleans area mislabeled dozens of frozen embryos creating the potential for many mix-ups like that experienced by Carolyn and Sean Savage.   

Even in the best of all possible worlds, mistakes are bound to happen.  And in our particular world, we really don’t know how frequently they occur.   That’s one of the reasons why all the legal uncertainty I’ve detailed is so important.  While the Savages and the Morells appear to have agreed on an outcome in their case, that won’t always be the case.   Litigation is bound to occur.  This new story convices me that it may well be sooner rather than later.

The Wrong Embryo and the Patchwork Quilt

As more details are reported about the recent wrong embryo case I can see even more issues to discuss.  (I’ve done several recent posts about it and there’s been some interesting discussion there.)  

To recap quickly, Carolyn Savage and her husband Sean had donated their own genetic material to create some embryos in order to use IVF.  After the birth of one child, the remaining embryos were frozen.    Last winter they went back to the clinic to use some of those frozen embryos in the hopes of having another child.    

Carolyn Savage did get pregnant but it turned out that the clinic had mistakenly used embryos of another couple, Paul and Shannon Morell.   Now as it happens, this time it seems it will work out as well as it possibly could–the couples are in contact and the Savages have agreed to turn the baby over to the Morells once it is born.   The key thing, to me, is that the couples have come to an agreement. 

But here’s a thing that leapt out at me in today’s news.