Frozen for the Future, Thousands of Embryos Linger in Legal Oblivion

Stephane Zavidow is pregnant with her second child, conceived in a laboratory. She and her husband have seven more embryos in a New York hospital, frozen for the future--with a question mark.

“The question is, what do my husband and I want to do with these?” asks the 31-year-old attorney. “Does one use them, destroy them, donate them or what?”

Her 39-year-old husband, Steven Zavidow, who runs a chain of Burger Kings, “would be happy with just two kids, while I would at least like to try and use the other embryos--after all, they’re made from our eggs and sperm,” Zavidow says.

She had embryos implanted into her uterus only after natural conception failed. The Zavidows’ remaining embryos are among 4,000 stored in liquid nitrogen canisters at New York Hospital-Cornell Medical Center.

Around the world, laws are being tested that force prospective parents to decide what happens to each potential child they’ve created--a multiple-cell dot smaller than a grain of sand.

In New York, state Sen. Roy Goodman has introduced a bill that would formalize who gets custody of the frozen embryos--especially in case of death, divorce or separation--and how they’re used. It would make an agreement between the two partners legally binding.

“For the average Joe, it would be like a will or a prenuptial agreement. It would lay things out, in case, God forbid . . .,” Zavidow says.

By some estimates, as many as 100,000 frozen embryos are stored across the country. They are a result of assisted reproductive technologies including in vitro fertilization, in which eggs taken from a woman’s ovaries are fertilized with sperm in the lab.

As many as 20,000 of those embryos may be subjects of disputes, Goodman says, but no firm figures are available.

The model for his legislation is the consent form now being used at the New York University Medical Center, where about 2,000 frozen embryos are stored. Available options, in case the male partner dies, are for the fertilized eggs to be transferred to the woman, donated for research, destroyed, or some other option to be filled in. In case of the woman’s death, the choices are similar, except the man could permit the embryo to be transferred to another woman.

But consent forms are not standardized across the country, and many don’t address situations such as illness, changes in financial situations, or divorce.

The absence of U.S. laws regulating the future of stored embryos could leave a growing number of them “in legal limbo,” with people struggling to decide what to do on a case-by-case basis, sometimes in court, Goodman says.

In February, the American Bar Assn. voted to sidetrack indefinitely a proposal for what would have been its first-ever policy on frozen embryos.

In a landmark 1995 case, Kass vs. Kass, a New York state appellate court allowed a Long Island man to donate his and his ex-wife’s five frozen embryos for research, reversing a previous decision by a judge who had given custody to the wife for implantation. She then appealed to the state’s highest court, which has issued a stay on the lower court’s order until the case is heard this month.

The Zavidows don’t face such a problem. “We trust each other,” says Steven, holding his wife’s hand in a waiting room of the Center for Reproductive Medicine and Infertility at New York-Cornell.

They first came here several years ago to seek help at the center run by Dr. Zev Rosenvaks. Last summer, the Zavidows produced a dozen embryos, and Stephane had three transferred to her uterus at the same time. One “took,” making her pregnant.

Like most couples trying to have a child through assisted reproduction, they needed multiple embryos in case the first implantation was unsuccessful or they wanted more children later. In addition, only up to 70% of frozen embryos survive thawing.

Since it’s not clear how long frozen sperm survive intact, and eggs were until recently considered too fragile to freeze, storing already-formed embryos eliminates at least one uncertain step, doctors say.

If either of Zavidow’s two other embryos had “taken”--statistically unlikely--the result could have been multiple births.

“I might want to go for another child, while my husband is afraid we might end up with five kids,” she says.

Donating the embryos to another woman is out of the question, says Steven Zavidow.

“I might donate our embryos for research, but not to an individual,” he says. “I want my children to be walking around with Mommy and Daddy.”

Such choices push many ethical hot buttons.

Zavidow sees donating embryos for research as a contribution to society. But the Vatican newspaper, L’Osservatore Romano, has condemned such actions as “a prenatal massacre.”

Dr. James Grifo, who heads the New York University program, says, “Embryos are not like living people. Most embryos created in a woman’s body don’t make babies, because even nature discards many of them early on. It’s like a tree that throws off seeds. How many trees grow from them?”

Instead of laws, he favors “some kind of arbitration panel” to help couples resolve disputes while avoiding high litigation costs.

The Zavidows have signed a consent form at New York-Cornell but will decide what to do with their embryos only after the birth of their baby, due in April.

“We respect each other’s wishes,” says Zavidow, adding jokingly, “And I’ll whisper in his ear while he’s asleep.”

Other couples have had their personal lives dragged into court. In a 1992 Tennessee case, a couple in the process of divorcing relied on the state’s Supreme Court to decide what to do with their embryos. The court ruled that the husband’s right not to have children outweighed his wife’s rights to donate the embryos to an infertile couple.

“There is good legal precedent for courts upholding consent forms, but laws could add some clarity,” says John Robertson, a law professor at the University of Texas in Austin and co-chairman of the ethics committee of the American Society of Reproductive Medicine, based in Birmingham, Ala.

“Problems arise when couples have left without a forwarding address or without saying, ‘Please discard the embryos if we are later unavailable,’ ” says Robertson.

Some countries are ahead of the United States when it comes to regulating treatment of human embryos.

In Great Britain, frozen embryos can be kept no longer than five years unless a couple directs otherwise. French law also applies the five-year limit.

In Australia, a court decided last year that an embryo produced with semen from the woman’s dead husband could be legally regarded as the man’s child.

Despite the ethical and medical quagmire, the Zavidows await their second child without regrets. Their first, Bessie, 20 months old, also was born through an embryo transfer.

“We just have to look at our daughter’s face. Nothing else matters,” says her father. “She’s a gift from God.”