Here’s a second-hand story that gives me something to think about: A two-year-old boy in Texas has inherited 11 frozen embryos left by his deceased parents. It appears (though I don’t think this is explicitly stated) that were the embryos brought to term, the resulting children would be full genetic siblings of the boy. But as he is only two and won’t be allowed to make decisions regarding the embryos till he is 18, there will be quite an age gap by the time any “sibling” appears if, in fact, they appear at all.
Strange though this seems I think it must be right. There seems to be no doubt that the embryos belonged to the boy’s parents. The parents died (sadly, they were murdered) and left no will and no other instructions regarding the frozen embryos. It’s hard for me to see any alternative at this point except to decide that the embryos–like all other possessions of the parents–devolve to the boy.
This may be treating them like property, but again, what is the alternative? We can say that they are a special form of property, but that wouldn’t take them out of the category entirely. They’re certainly not people. And there aren’t too many other categories to deal with. (Quasi property, referred to in the blog post I linked to, is still pretty much property.)
It’s odd to think about the options that will be presented to the young-man-to-be in 2030. Does he bring some of the embryos to term? (If he does, are they really siblings? Who would raise them?) Does he destroy them? Does he donate them? Or does he do nothing–and leave them in the freezer? The last, of course, amounts to kicking the can down the road. And eventually they won’t be viable anymore, I suppose. How would an 18-year-old make this decision? I don’t envy him the privilege.
And apart from consternation at the plight of the child, what’s to be made of this? I suppose I see this as yet more evidence of the need for careful counseling of those entering into the brave new world of ART. In an ideal world, the parents here would have thought about what they wanted to do with the embryos in the event they both died. Perhaps they would have chosen to leave them to their young son, but that’s hardly obvious to me.
It’s not that I think the parents’ choice of what to do would have been easy. I understand–I think I can imagine–that for people who have created and used embryos, some of which remain frozen, directing the disposition of those embryos in their absence is difficult. (Actually with 11 frozen embryos it was nearly certain that they were going to have to face the disposition question sooner or later.) But if they created the embryos (or caused them to be created) then it seems to me only right that they should bear the responsibility for the difficult decision of disposition.
It’s at the beginning of the ART journey that they should recognize that responsibility. If they don’t want it, they can always skip ART. (I am not saying they can never change their minds, by the way. Just that they need to appreciate the responsibility they will have.) And I think that this can really only be appreciated with education/counseling. It takes time, it takes thoughtful work, but it seems to me it’s the only right way to proceed. Perhaps, after reflection, they would have left instructions about the embryos. I think that would be a better outcome than this, even if I think the court basically got it right.
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And presumably they could be given or bequeathed to someone else. I think the UK only allows embryos to be stored for ten years, and they would be destroyed after the parents’ death anyway without written instructions to say otherwise.
I’m not sure there’s a limit on how long frozen embryos are viable btw.
I posted this elsewhere six(!) years ago:
This is the sort of thing that keeps bioethicists awake at night.
There are hundreds of thousands, possibly millions of “leftover”
embryos in clinics around the world. Most of them will never be
used for anything, but won’t be destroyed either, at least not for
the time being.
Some articles:
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/12/31/nivf131.xml
http://www.motherjones.com/news/feature/2006/07/souls_on_ice.html
“I have tons of embryos, and I can’t track down the owners,” said
one Los Angeles doctor, Vicken Sahakian of the Pacific Fertility
Center … . Sahakian practically had his head in his hands,
thinking about all those embryos. “It’s one of the main problems I
have. I have thousands of embryos from patients who have been
through this program for, what, 10-, 12-plus years, changing
addresses, and never called back, never paid storage fees—you can’t
track them down.” His “biggest nightmare,” he said, is that he will
be unable to sell his practice when he is ready to retire, because
no doctor will want to buy a practice that comes with a closetful of
unclaimed embryos and the vague, terrible responsibility they
entail. “The person buying it does not want to buy the embryos.
That’s the rule,” he said. “People do not want to inherit embryos.
So what do you do with them? I have embryos that have been here
since 1992.”
…
More than half the couples who had planned to dispose of their
embryos decided, instead, to use them, or donate them. Conversely,
seven of the eight couples who had planned to donate them to
research decided to use them, or dispose of them. Nearly all who had
planned to donate their embryos to another couple found that, when
push came to shove, they could not relinquish their potential
genetic offspring. In short: Almost all reconsidered, not in any way
that could be neatly summarized. All in all, 71 percent changed
their minds about what to do. Also striking: Only about half of
patients with embryos stored for more than three years could be
located.
…
Of the 58 couples … interviewed, the average couple had seven
frozen embryos in storage. The average embryo had been in storage
for four years. Even after that much time had elapsed, 72 percent
had not decided what to do, and a number echoed the words of one
patient: “We can’t talk about it.”
http://www.usatoday.com/news/nation/2007-01-29-embryo-debate_x.htm
(“54% of her clinic’s patients who have finished their families ask
to have their embryos destroyed, 43% donate them to basic science
unrelated to stem cells, and 3% offer them to other infertile
couples.” )
In the UK, unused embryos created for surrogacy must be destroyed
after five years have elapsed. This caused a problem two years ago
for a couple who had embryos created after the woman had a
hysterectomy, and were running out of time to use them:
http://news.bbc.co.uk/2/hi/health/4753997.stm
It’s worth remembering that even outside the world of ART (assisted
reproductive technology), for every three people that are born,
another seven embryos were created that did not result in live
births. Five of those would have failed to implant in the womb, and
another two were miscarried, often too early even to be noticed.
Those seven embryos also had unique genetic codes, but did not result
in living babies.
This case argues for a requirement that people who preserve embryos leave instructions for their care and disposition, including providing another adult with the power to do so, preferably by means of a will and durable power of attorney. With or without a law requiring such measures, it seems irresponsible not to take them.
Indeed. I think often the problem is that at the time the embryos are created (and originally frozen) people are singularly focused on getting pregnant/having a child. I would guess concerns about what happens down the road seem secondary to them–something that can be deferred until later. But for lots of people that “later” never comes. I think dealing with frozen embryos is something many people find fraught, as is suggested by the materials noted by one of the other commenters.
Perhaps any lawyer who is drafting a will for people ought to inquire about whether there are frozen embryos tucked away somewhere. I’m sure the vast majority of the time the answer would be “no” but every now and again I bet you would find some. Then, of course, you’d have to work through what to do about that.
My clinic made me fill out a form, I wanted to have the embryos given to scientific research that would not attempt a birth, but as that was not an option I chose that I would have them destroyed. I would leave them to my child only if there were scientific advances that meant the embryos could be medically useful for stem cells or something like that (should stem cell research ever find a way to use them to cure diseases).
Good for you. And like really what kind of research are they doing and do you really even want to know. I do hope they honor your request.
Well, there wasn’t actually a donate to research option. If I really wanted that I would have had to leave the embryos to a person who would not want to use them and would donate them to research for me, which sounded overly complicated. I assume I can go and sign a new form if needed if scientific advances make it beneficial for my daughter or other relatives to have the embryos after my death.
I would hope that this is the practice at most reputable clinics. I’m sure that for many people it is a difficult time to make this decision. But it is the most obvious time to ask. And you could give people the option of changing their minds later. The key, from my point of view, is to have SOME decision made–rather than just leaving it blank.
This, All of THIS,is just insanity. I wish the madness would stop.
I think it is important to consider how a situation like this might arise. It isn’t (in my view anyway) madness or insanity. This might just be a situation where a married couple wanted to have a child and ended up needing to use IVF. They could have been using their own genetic material. This, for many people, is a pretty acceptable use of ART. (I know it is not acceptable to everyone.) It’s pretty common to end up with more embryos than you can use in one go, and so you freeze some for potential later use. (I do think 11 is rather a large number, but what do I know.)
Now it’s easy to say that you should have clear plans and clear instructions for what will happen to the frozen embryos if you don’t use them. But it[‘s also true that most people know you should have a will and also various signed medical powers of attorney etc. I think it’s often one of those things people put off or don’t get around to, partly because there are hard choices to be made.
And then catastrophe strikes, as was the case here. And suddenly there are frozen embryos to be dealt with and no expressed intentions/instructions.
I’m afraid this is really common (see the discussion of ml66uk above). And it isn’t the result of doing anything particularly unusual. I don’t mean that we shouldn’t think about how to prevent these sorts of problems from arising, it’s just I don’t think I’d call it madness or insanity.
Yes, Julie I agree with you in your lawyer way of rationalizing this particular situation. It’s all relative. BUT relativism in my mind is a slippery slope in regards to the bigger picture, dignity of the person. It can and often does lead to reproductive chaos, or as I called it, insanity. I find myself leaning towards “INSTRUCTION DIGNITAS PERSONAE ON CERTAIN BIOETHICAL QUESTIONS”. I didn’t start there, but studying all of these issues for years now, keeps bringing me there. But that is obviously just my opinion. No offense intended by stating/admitting this.
I think I know what you mean, with the reservation noted below, about the slippery slope. And I think what you are suggesting is that one way to avoid the slope is to not start down it at all–to reject all ART, including the married couple IVF with own genetic material? Perhaps it is the case that the only way to avoid the hard questions is not to set out on the path (I’ve switched metaphors, haven’t I?)
In general, though, I find the idea of a “slippery slope” can be a little misleading. It’s true that one can unwittingly slide all the way to the bottom (and whatever lies there). But one can also stop partway down, as it were. It is a question of dealing with the difficult questions. I would hope that anyone setting out down a path that involves creating frozen embryos will be encouraged to think about the choices that will bring.
🙂 🙂 🙂 Yesssss
the madness is the idea that this guy when he turns 18 could very well decide to create some siblings for himself
It does seem like madness. I feel like someone needs to write a novel or a story about this in order for me to even have a glimmer of how you’d think about this choice. Destroy them? Give them away to strangers? Use them to create your own family?
See I think treating human tissue as property and this really highlights the madness and insanity of it – how did we as a society get to the point where we think its OK for anyone, be it someone’s son or their spouse or some random stranger from a cryobank…how did we get to the point where its just common place to think we have the right to reproduce the bodies of anyone other than ourselves? This kid has no business making the call on whether or not to arrange his own siblings gestation or births. The bodies reproducing would not be his own and so he’d be really acting out of turn. Its a cute, odd peculiar story because this kid is inheriting his mother’s reproductive tissue but put anyone in place of that kid. Like why do we think it’s OK for the Sperm Bank of California to act like it owns the right to produce thousands of men’s bodies – heck after they’re dead too. You think they’ll throw out the stock when a donor dies? How will they even know he’s dead? It’s not exactly the kind of thing people advertise to their friend’s and family – If I ever die let the sperm bank know. Why would they even care? They have his living cells he’s still alive as far as they are concerned.
Dead people don’t make babies. Dead people don’t have offspring more than 9 months after they die anyway. These people are not really dead as long as their cells are alive. We need to polish them off so that they are not kept alive in some odd kind of slave state with their cells still operating and reproducing without benefit of their minds and bodies to take responsibility.
Are you suggesting that because the people who would make the decision in your mind about what should happen to the embryos were killed that they should just be automatically destroyed? I’m not trying to argue if that’s the case one way or another just want to make sure I understand your position.
Greg I think as bad as gamete donation was when it was fresh at least you had men who were making a decision on a given day to go into a doctors office to impregnate a particular woman. He was in control of what he was doing at that moment, alive at the time of conception, in full control of his body and his reproductive freedom. At no point was anyone really under the impression that they owned his cells and could reproduce him. The next time he was called upon to donate, say for a second child for the same woman, he might say no, he no longer wished to reproduce with random women, he’d changed his mind. The ability to change our minds and break promises is pretty much the core principal of freedom. Your not bound to a decision you made yesterday when circumstances might have been different. There are always exit clauses in contracts, you might pay penalties for breaching the contract but your not forced physically to follow through with someothing. Freezing people’s gametes, freezes them to a decision they made yesterday and takes autonomy away from the individual. I’m not saying that I think it was ever right of donors to follow through and abandon their kids at birth but they were not physically enslaving themselves and giving other people physical control of their bodies the way they do now. Nobody should have the authority to decide whether or not you have offspring in the world. It should never be anyone else’s call nobody should be in possession of your cells with authority to make decisions about them. What I’m saying is that when a person dies not a single cell of their body remains alive. If they die and their lung is in someone ele’s chest they are not all the way dead really their cells are still alive. But they are inside another person’s body and they have no control over that person’s body. If their cells are alive in a freezer destroying the cells would not interfere with anyone else’s body and maybe it would protect the bodily autonomy of the individuals who have passed away. They won’t be alive to care for their own offspring. It’s not like disposition of other property where you make a decision while your alive that after your dead your property will go to your nephew. It’s frightening to think that people inherit living cells and property rights to reproduce dead or living human beings. It’s much bigger than the individual couple its a matter of whether or not we are going to treat people and their parts like they have a blue book value like their cells are inventory with value. I think freezing is a dangerous thing in many ways. Helpful in some regards but frightening in others.
All you had to say is that I was correct in my assumption of your position in this case. The rest of your response really wasn’t necessary or applicable to my question.
Thanks for telling me how to talk and whether or not what I have to say is OK or not.
Remember Greg that the embryos are not little babies waiting to be born with little sets of human rights. They are the cells, the body of a dead woman. Like her liver or her ear. They are her living cells so she’s not quite all the way dead. If her liver is transplanted into someone’s body her living cells are supporting the life function of another person. These particular cells won’t support anyone else’s reproductive function but her own and the man she conceived with. Nobody else can use her tissue to reproduce themselves. There maybe should be a law that the gamete donors both need to be alive at the time of an embryo transfer into the body of a surrogate for instance so that they are in complete control of their faculties and could potentially care for their offspring if born. There’s nothing you can do if they are hit by a bus the next day but nobody else should ever have the authority to decide where when or with whom someone reproduces. It has to remain with the individual or we’ve turned a corner back to thinking we can own people, their bodies and their freedom. In theory gamete donors can always back out and ask for their cells back right up until they are in someone else’s body.
Unless a decision is made that the embryos will be donated this case has nothing to do with third party reproduction. This case has to do with a married couple who underwent IVF had a kid from it and then was murdered unable to make the decision on whether to use the left over embryos to have another baby.
You believe only the couple should be allowed to make that decision. And now that the couple is gone you believe they should be destroyed. That’s a respectable position. But it has nothing to do with third party reproduction so you should just stick to that and leave the rest out of this thread.
Greg when you say it has nothing to do with third party reproduction, its hard to know what you are trying to communicate because the term third party reproduction is meaningless to begin with. There is never a third party reproducing. What’s called third party reproduction generally involves one of the two parents, sometimes both, abandoning (not relinquishing) their parental duties for their offspring. These two people won’t be alive to take care of their children – the rest of their bodies that can care for a child and take responsibility – those parts are dead. They should both be alive 9 months prior to the birth of their child. If they die during gestation there is nothing to be done about that but they should definitely not both be all but dead when gestation begins. Much of what is called third party reproduction involves people having custody and control of other people’s reproductive cells as this child now does. He should never be empowered with the ability to get his siblings to be born. These people’s cells should be thawed out and not ever implanted into anyone for gestation.
It’s hard to know where to respond here. The embryos exist. The people who created them have died. Someone must make some decisions. Is there a better solution than this?
Beyond that, while I don’t to rerun our standing arguments, I would just note that the embryos are not reproductions of either their genetic mother or their genetic father. They aren’t even reproductions of each other. They’re unique. I’m not sure why this matters but you do have a way of putting great meaning in terms like “reproduce” and I’m just not sure what language will bear here.
Just so you know, though, I don’t mean to reopen this whole can of worms so I will let this go from here on out. I don’t want to constantly return to the same argument. It does seem to me that the concrete question here is what else could the judge have done?
I’m not saying that these are reproductions of these people I’m saying all this is is the cells of these people. It’s not their offspring. The live cells of these all but dead people should not be under the control or custody of other people. They should both be alive 9 months prior to the birth of their offspring to have been in control of what’s going on. No part of a person’s body should be artificially kept alive after a death certificate is issued on them. Nobody should have custody of living cells of people that have been issued death certificates. Destroy the cells is the wrong word, how about just take them off life support, thaw them. They should not have control over the bodies of other people.
What’s insanity? That people that wanted to have children weren’t able to do so like you and others were?
What’s insane is that anyone other than them would find themselves in a position where they might be able to get someone to gestate these people’s kid after they are mostly entirely dead. Dead people can’t reproduce so they are alive just enough to make babies but not to take care of them
I don’t think I asked you why you thought it was insane.
And you are ignoring the fact that they have a kid that they can’t take care of but that’s because of a tragedy which has nothing to do with your agenda.
tissue banks are regulated, so its possible to create some sort of regulation that puts the responsibility on the storage facility, to have the people sign at the time they place the embryos for storage.
i also think limiting the time that embryos can be used could be regulated as a public health measure.
I have really put some thought into the idea that sperm eggs and embryos should be treated as people – but not as new people, rather as the body of the individuals the tissue has been harvested from. Human tissue comes from humans and the part deserves the same respect as the whole. If a whole person is not property than how can part of a person be property? If we start treating human tissue as property that means everyone born has a bluebook part value and it’s transferable as we see here in this case, which means that people can begin to amass an inventory of human tissue that is not theirs, that has not been implanted into their body in support of their own body’s healthy function, it’s stored, it’s stock, its inventory. Suddenly they control a piece of another person’s body and it’s up to them what happens to another person’s LIVING tissue, their live cells. That is not really a position that anyone should find themselves in nor should we really be allowing people to think they own the rights to decide what happens to other people’s bodies. It’s real clear to me that eggs are part of the body they came from and so is sperm, it always is theirs no matter who they give it to. Yes they loose authority over their cells during that period when their cells are inside someone else’s body – but that’s because they don’t have any authority over anyone’s body but their own. Men have no control over their sperm once it’s inside of a woman’s body. He can’t control her body. That does not mean he has no obligation to care for his offspring just that he can’t be forcing a woman to abort or go through with pregnancy. Same goes for women who let their eggs be implanted in other women – can’t control the body of the other woman during pregnancy but the kid she gives birth to is the really the responsibility of the body the offspring originated from. Embryos are tougher but I’m going to side with the embryo being part of the body of the woman whose egg was fertilized. Not a new seperate human being deserving murder type protection – but like protection with regard to it being part of her body that she should be in control of and responsible for and nobody else should be stealing it or misappropriating it and she should not be trying to sell it and pretend itis not hers anymore.
You know egg donors pay income tax for the money they make because all income is taxable but it’s not like its a tax on the sale of property, she fills out a 1099, she’s a contractor, she provided a service, her eggs or his sperm or those embryos are not supposed to be being treated by these cryobanks as inventory with market value but me thinks they are doing just that. I looked into the financials of some of the major banks and their stock is part of their net worth. If this is the case and this kid can inherit property of his mother’s living body then what is he then? Is he her power of attorney? He can decide that she’s going to have some more kids? I think that we should keep good careful track of who all these embryos belong to and if the people expire it should be policy that their living cells and tissue are also destroyed because they are not alive to take care of any offspring born and they are not alive to retain control over the decision making process. Their cells could fall into the wrong hands and horrible things could happen and really people’s cells should die when they die because it puts the living in a tremendously powerful position of being able to control the bodies of other individuals who cannot fight back or say no. They could do experiments who knows the point is that out of respect for human bodily autonomy we should destroy embryos of dead people. I have plenty of pro life friends that will balk at that but I’m always in their faces saying we need to worry about the rights of living born people and leave women and their medical conditions to themselves. We don’t hold funerals when women have miscarriages, its just the womans’s body and her cells and her pregnancy ending. It does not become anyone’s kid hers or his until there is a birth, so that’s my take, treat the embryo as the body of the woman it should be inside of .
I think sperm eggs and embryos should be treated as gross emissions to be disposed of as discreetly as possible. We should pass a law to turn off all freezers that contain such gross biological material, like dead pets, excised body parts, heads of dead baseball players, and sperm and eggs and embryos. None are living people, there are no living people in a freezer.
Such an unusual sad case. That’s a lot to put on this young man after his parents were murdered. I guess if I were him I would have them used for research or destroyed. But it will be interesting to see what happens.
Thanks for sharing Julie.
I appreciate your reminder that this is, above all else, sad. It also seems to me it will be perplexing for the boy as he comes of age. Would his parents have intended this? I somehow doubt it.
Its true though that dead things are all the way dead they have no living cells and they are not capable of reproduction any longer. They are dead and so are their sex cells. When a part of the body dies but not the whole thing we are not supposed to be issuing death certificates even when it’s totally hopeless. I know this is kind of dicey with brain death, but they wait till the body dies to issue the death certificate. I think organ donation is tricky because technically the person has to be alive still when the organ’s are harvested. Their cells, organs are still their active living tissue operating inside someone else’s body keeping that other body alive. Technically the donor’s body won’t be all the way dead until the person that’s using his organ is dead. They issue a death certificate but its kind of a fudge given what we know to be true about death.and the whole person no longer having living cells. With someone’s sperm egg or embryo it’s never going to support the healthy function of any other body than the donor so its unlike any donated tissue. Maybe we should stop declaring people dead when they still have live tissue samples floating around out in the world so that situations like this one where someone winds up inheriting their body parts and the authority to reproduce other people. Like all the donated sperm, if the guy dies they should not be able to use it. It’s not property to be disbursed and its not an anotomical gift like a lung.
Julie,
I wonder what the situation would have been if let’s say instead of both parents being murdered that somehow the father died for whatever reason. Would the wife be able to take those embryos and have them implanted in herself? I would think so. It maybe an awkward situation though.
Is there a situation like this that’s ever happened?