Cold War in Fertility Technology
Every day, Jacob Mayer and his staff open a set of squat gray tanks that sit like oversized milk bottles on the floor of their busy laboratory. Using a plastic dipstick, they make sure that each one contains the proper amount of liquid nitrogen, which keeps the temperature inside at a frosty 321 degrees below zero.
A slip in the nitrogen level could be calamitous for the contents of the tanks: thousands of tiny human embryos.
No one keeps accurate figures, but specialists believe that more than 100,000 human embryos have accumulated at U.S. fertility clinics like this one, Norfolk’s Jones Institute for Reproductive Medicine. They are the little-noted byproduct of the boom in fertility services, in which couples often create more embryos than they use in any one attempt at pregnancy. The extras are usually frozen in a kind of suspended animation in case their owners want to try again.
“These are extremely precious to our patients,” said Mayer, the embryology lab director, who is automatically paged when electronic sensors in the tanks detect any sign of trouble. “Our underlying feeling is one of nurturing and protection.”
Now, however, embryos like these are drawing interest far beyond the doctors and patients who created them. Are embryos people or property? Souls or just cells? The questions are sure to test philosophers for years. They also are at the center of a growing number of legal quandaries today.
Adoption agencies are transferring embryos to hopeful patients who cannot create their own. But the work is hampered by a lack of clear laws about who the legal parents of the resulting children will be. Fertility doctors have no guidance from lawmakers as to whether they may destroy any of the 20,000 abandoned embryos, leaving physicians to make judgments on their own.
Casting a cloud over efforts to cure disease, religious groups are pressing Congress to block promising medical research in which embryos are dissected. And, inevitably, embryos are turning up in divorce and custody disputes, forcing judges to decide whether laws written for property and contracts should apply to this early form of human life. In two states--New York and California--courts ruling in high-tech reproduction cases have appealed to lawmakers to clarify parenthood and custody laws.
“We’ve just hung these embryos out there in limbo, which makes no sense,” said Arthur Caplan, a bioethics professor at the University of Pennsylvania. “The solution we’ve settled on is, ‘Let’s just make as many as we want now and worry about their moral status later.’ That is just not morally responsible.”
Yet Congress and state legislatures have been slow to take up these questions, fearful that even the tiniest change in the laws on early life will inflame passions in the abortion debate. A nation that often is preoccupied by the morality of ending life in the womb has been left without clear laws concerning how embryos may be created and when they may be destroyed.
“There’s no doubt that the technology has raced ahead of the legal system,” said Susan Crockin, a Newton, Mass., lawyer who focuses on adoption and reproductive issues. “We’ve got an obligation to create some clear legal structures and we absolutely do not have what we need yet.”
Frozen Embryo Can Last for Centuries
Embryos are created as part of a procedure called in vitro fertilization, or IVF--the technique that in 1978 produced Louise Brown, the first so-called test tube baby. Since then, it has been used to produce more than 100,000 babies in the United States.
In most IVF procedures, a woman takes hormone injections so that her body ripens 15 or 20 egg cells during her monthly reproductive cycle rather than the usual single egg. Doctors remove the eggs in a surgical procedure and mix them with sperm. The resulting embryos grow for several days in a laboratory dish, then are transferred to the woman’s uterus.
Not every embryo grows successfully in the womb--in fact, most fail. Still, couples usually transfer no more than four at once, to cut the odds of having twins and triplets. This leaves many patients with unused embryos, which they most often choose to freeze for possible use later.
When frozen, most embryos are clusters of cells barely visible to the naked eye. “They should last for centuries, or at least much longer than the life span of the individuals who created them,” said Mayer, an assistant professor of obstetrics at Eastern Virginia Medical School.
Thousands are discarded once their owners decide that they are no longer needed. But embryos have been thawed and used in successful pregnancies as long as nine years after they were frozen. At Mayer’s clinic, 170 embryos have been in storage for more than a decade.
An Aid to Stem Cell Research
For years, IVF has been practiced in the relative privacy of doctors’ offices. But with a record number of Americans creating embryos at fertility clinics and with science creating new uses for them, public debate is growing about how human the human embryo is--whether it is something like a person or more like a cluster of cells.
The distinction is crucial to Jim Cordy. Thirteen years ago, at age 40, he was diagnosed with Parkinson’s disease, which made daily tasks so difficult that he retired early from his management job at a Pittsburgh metals maker. But new research using embryos, he said, “is going to save my life.”
In that research, scientists dissect embryos and extract stem cells, a remarkable type of cell that gives rise to nearly everything else in the body: organ tissues, blood cells, neurons and the like. Scientists first isolated embryo stem cells only two years ago. Now, they are racing to figure out how to guide them to become new insulin-producing cells for diabetics, heart muscle for patients who have heart disease or brain cells to help Parkinson’s patients like Cordy.
The research has drawn strong opposition from people who say it is immoral to destroy embryos. They are pushing Congress to block a decision by President Clinton’s administration to fund the research.
“I don’t understand how people could oppose this,” Cordy said. “A pencil dot--that’s what we’re talking about when we talk about these embryos. We are not talking about half-formed fetuses.”
Cordy’s view angers JoAnn Davidson. “We see these embryos as children locked in frozen orphanages,” she said. “Those embryos are human life.”
Davidson runs a placement service not for newborns but for embryos. In the last 2 1/2 years, Nightlight Christian Adoptions of Fullerton has placed 202 embryos from 20 donor families, producing five children. Four others are yet to be delivered.
Embryo donations still are uncommon but their popularity seems to be growing. Richard Marrs, a Santa Monica fertility specialist, said that 20 of the 200 patients who store frozen embryos with him opted this year to donate them to other couples, up from three or four patients in the past.
But there are far more people seeking embryos than there are donors. Many specialists say that fertility clinics would do more to foster donations if they were not constrained by legal uncertainties.
One concerns parental rights. According to Crockin, the Massachusetts lawyer who specializes in the field, only Florida, North Dakota, Texas and Virginia have laws laying out parental rights for donated embryos. The laws generally relieve donors of responsibility for any children born from their embryos and give legal parenthood to the people accepting embryos. Elsewhere, Crockin said, there is no guarantee that the state will recognize a recipient couple as parents, even when they have signed a private contract with the embryo donors.
Another uncertainty is whether clinics must screen embryos for disease or retain medical information about the donors and for how long. “Once the couple says they may be willing to donate, do you need to screen them in a different way, say, psychologically?” asked Dr. Robert Stillman, a fertility doctor in Rockville, Md. The Food and Drug Administration is studying some of these questions and may issue rules.
As states take up the debate, they likely will find it freighted with abortion politics. Some people say that embryo transfers should be regulated like adoptions, in which parents giving up a child usually are given time to change their minds and the adoptive parents must submit to criminal background checks and psychological screening. Today, embryo transfers are treated more like sperm or tissue donations, where regulation is not so strict.
But adoptions also must be certified by a judge, who is instructed to place the child’s interest above all. If applied to embryos, the adoption model could give weight to the campaign by antiabortion groups to treat embryos as children.
Nightlight Christian Adoptions, in fact, treats every embryo transfer like a traditional adoption, with the potential parents submitting to background checks and home visits from social workers.
Some doctors say that the lack of legal clarity has frightened some clinics away from trying to match donors and potential parents on their own. Other physicians fear that they could be sued one day for failing to keep medical data about donated embryos, an issue that the FDA is studying.
Courts Vary Widely on the Issue
A growing number of people involved in fertility services say that clarity also is needed on another issue: What kind of consent should clinics obtain from patients who create embryos?
Most clinics require patients to sign a form stating what should be done with their embryos in case of divorce or death. But a 1997 study by a panel of New York state lawmakers found that consent forms vary widely and that some use “ambiguous and confusing” language.
Moreover, the forms have not prevented couples from going to court to resolve competing claims for embryos. In Tennessee, three courts that considered the same case came up with three different views of the embryo. In that case, a divorced woman, Mary Sue Davis Stowe, wanted to produce children from seven frozen embryos that Junior Lewis Davis, her ex-husband and the genetic parent of the embryos, wanted to destroy.
A state court judge ruled in 1990 that the embryos, frozen in December 1988, were children and awarded custody to Stowe. An appeals court decided the same year that both Davis and Stowe should have an equal voice in the embryos’ disposition and it awarded joint custody. But in 1992, the state’s highest court gave custody to the ex-husband, saying that his ex-wife could not force him to become a parent.
State laws are so inadequate in California that one court urged lawmakers “to sort out the parental rights of those involved in artificial reproduction.” Courts can continue to decide cases, one by one, said the 4th District Court of Appeal in Santa Ana in 1998. But it called on the Legislature “to impose a broader order which . . . would bring some predictability to those who seek to make use of artificial reproductive techniques.”
State lawmakers have not yet responded.
Nor have the states or Congress clarified when, if ever, fertility clinics may discard abandoned embryos. Most clinics ask patients every year or two to review their decisions about whether to discard their frozen embryos, to donate them or to keep them in storage, for which the clinics usually collect a fee. Yet the New York panel estimated that as many as 20,000 embryos have been abandoned by patients who have lost touch with their fertility doctors.
“It’s just a bizarre phenomenon that you have these embryos in limbo,” said Roy Goodman, the state senator who led the panel. Fearing lawsuits if they discard the embryos, “the hospitals tend to keep them frozen at a tremendous cost.”
Goodman wants to give clinics the authority to destroy certain abandoned embryos after three years. After watching his proposal fail for four years, he thinks it never will become law.
