What To Do With The Frozen Embryos? The New York Times Takes Up the Question

For the second time in two days I’ll do a quick post pointing to something in the New York Times.   Today it’s this feature, about the dilemma posed by the large (and increasing) number of frozen embryos.   In part this seems to have been inspired by the recent Illinois case I blogged about recently, but it really covers a lot of ground.   I think I’ll just touch on a few of the notable points here.

First off, you can see why there is a frozen embryo problem.  It is simply routine to create more embryos than are needed.   Before eggs could readily be frozen it also made obvious sense.   If you didn’t fertilize all the eggs you had, you lost them.  Once they were fertilized they could be frozen.

Even with egg freezing it probably makes sense. 

Who Gets The Embryos–And Why Does It Work That Way?

There’s a story that has been in the  news sporadically for the last months.   Some time in the past Sofia Vergara (who I guess is a well-known actress?) and Nick Loeb were a couple.  They wanted to have kids together and, for reasons I do not know, embarked on IVF.   As is typically the case, more embryos were created than were immediately used.  Two were frozen for future use.  But then the couple split up and faced the question:  who gets the embryos?

You can read one version of the most recent news story here and there’s also an interesting essay by Nick Loeb that appeared in the New York Times some weeks ago.   I’m a little wary of the facts in that essay, because surely they must recite Loeb’s version of events.  (One can assume there is another version out there, too, and we just don’t know it.)

Who Gets To Keep The Frozen Embryos?

From time to time there are disputes about the disposition of frozen embryos.   (This has come up here before.)   If you think about it, it is not hard to see why.  Anyone using IVF creates embryos.   You almost always create more than one or two for a variety of reasons.  So you don’t end up using them all.  Maybe you think you’ll use them later.  Maybe you’re not sure.   In any event, the common practice is to freeze them.  That defers the decision about what to do with them.

Disputes arise when two people who created the embryos (usually each contributing their own genetic material, but not always) split up.  Who gets them?   This seems to turn in part on what the people want to do with them.  In general, in a string of early cases, the person who wanted them destroyed rather than used prevailed.   No one, it was said, should be forced to procreate.

(That’s not an entirely satisfactory logic to me–if a man and a woman have sex and she gets pregnant, she can certainly decline to have an abortion and the man will procreate. 

Can You Inherit Your Potential Siblings?

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? 

Circling Back to the Long-Term Frozen Embryo

The last of my really sporadic posts concerned a new story about Liam Burke, a child born a little under a year ago.   His mother–and here I mean the woman who gave birth to him who is also his legal mother and his social mother–is Kelly Burke.   The embryo that became Liam was transferred to Kelly’s uterus after it had spent 19 years cryogenically preserved.   (You can just go read the post, if you  like.)

Anyway, the story has surfaced again and this time a couple of other things struck me.   In fact, I found echoes of the issues raised by the more recent post about the underground market for children.

Here’s the thing.   The embryo in question was given to Kelly Burke by a couple who had created these embryos 19 years earlier when they were having children.  

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.