Tens of thousands of embryos left over from IVF treatment are stuck in limbo in U.S. fertility clinics. Some are outright abandoned or their owners can't decide what to do with them. Tank failures at two clinics last year exposed hidden issues with frozen embryos, including some from the 1980s when many centers started offering IVF.
How many embryos are in storage isn't known. One study estimated there were 1.4 million in the U.S. Researchers think 5 to 7 percent are abandoned, though it's as high as 18 percent at some clinics.
A few years ago, medical groups developed sample consent forms clinics could use for new patients, spelling out what could happen to unused embryos. But that hasn't resolved what to do with ones made long ago.
"It's a real dilemma for these clinics," said Rich Vaughn, a Los Angeles lawyer who headed the American Bar Association's assisted reproduction committee for many years. "We don't quite know what to do with them and everyone's afraid to act" for fear they'll be sued if people surface decades later and want their embryos.
The number is growing as more couples try IVF and because of changes in how it's done. The old way was to mix eggs and sperm in the lab and transfer multiple fresh embryos to a womb, hoping at least one would lead to pregnancy. Now, couples usually freeze many embryos, test for health problems and transfer the most viable one at a time to avoid multiple births. That often means leftovers once the desired family is complete.
How many embryos are in storage isn't known — centers don't have to report that. Some define that as a year of no contact or storage payments after reasonable efforts to find the owners; others draw the line at five years. Some clinics search social media and hire investigators to find owners when abandonment is suspected.
Andrea Braverman, a health psychologist at Thomas Jefferson University in Philadelphia, said it's not an easy choice. A study of 131 couples in Canada found that one third had not returned for frozen embryos after five years. Another study found that up to 70 percent of couples delayed a decision for at least five years and many changed their minds about what they thought they'd do after they had IVF.
Dr. Craig Sweet, who runs a fertility clinic in Fort Myers, Florida, knows the problem well. About 18 percent, or 300, of his clinic's frozen embryos are abandoned, some for 25 years. A study he did found that couples were more likely to abandon embryos if they had stored them a long time, had a low education level, already had many children or owed the clinic money.
The courts view an embryo as something between person and property, said Susan Crockin, a reproductive law expert at Georgetown University. When it's in the lab as opposed to being in a womb, "people have equal rights to it" and most courts will not allow one member of a couple to use an embryo over the other's objection, she said.
The actress Sofia Vergara and her ex-fiancé Nick Loeb fought over frozen embryos they made, but a court said Vergara could not be forced to procreate against her wish and denied Loeb use of the embryos after the couple split.
States may try to rewrite legal precedents. Last April, Arizona's governor signed legislation allowing one member of a divorced couple to use embryos created during a marriage even if the ex-spouse doesn't want a child.
Clinics try to avoid being in the middle.
"What we tell couples is that if you're divorced, nobody gets to transfer the embryos until we get something from a court" that says who has control of them, said Dr. Richard T. Scott Jr., scientific director of Reproductive Medicine Associates, one of the nation's largest clinics with centers in New Jersey, Pennsylvania and Florida.
Frozen embryos remain viable for decades as far as anyone knows. Last year, the National Embryo Donation Center in Tennessee reported a birth using an embryo that had been frozen for 24 years.
Photo: MARILYNN MARCHIONE
Based on The New York Times