One month after the Alabama Supreme Court declared that frozen embryos are legally considered children – and two weeks after the state’s Legislature undid the major impacts of that decision by protecting IVF facilities – the same issue was faced by several state legislatures. They punted.
A dozen or so states have laws that could subject IVF facilities to civil liability and even criminal prosecution. About a third of states have laws saying that at some point in their gestational history, fetuses are “people.” The implications are far-reaching, and we, as a society, are ill-equipped to address them, as illustrated by Iowa and Florida’s decisions to defer legislation blocking personhood bills that would have made it a felony offense to “cause the death” of an “unborn person.”
Back to Where We Started: Liability for IVF Malfeasance
The implications of the legislation extend far beyond facility immunity for destroying or disposing of unused gametes. Without comprehensively dealing with personhood, the original problem remains, i.e., not adequately providing compensation for destroyed gametes. While product liability and negligence for defective products that damage embryos used in IVF will still stand, so it seems will the original de minimus awards. Criminal liability for embryo destruction, however, which has its own deterrent value, has been eviscerated by the Alabama legislation. This is not an idle concern.
Recently, a company that manufactured the growing solution used in IVF has been sued for claims their product was toxic and destroyed embryos fertilized in the procedure. The lawsuits followed a recall of several batches of the product, with the manufacturer directing clinics that purchased the product to return it. The implications to potential parents losing IVF embryos destroyed by this solution invoke the same tragic response as the failed refrigerant – even though the damage occurred a day or so earlier in the embryo-development process.
While the loss of the hope of having children will still face limits in monetary awards, there is an undeniable constitutional right to have offspring [1], the denial of which should be appropriately compensable, but under what rubric, society has yet to determine.
“Georgia’s abortion law goes further than any other fetal personhood provision. Called the Living Infants Fairness and Equality, or LIFE, Act, it prohibits abortion after six weeks and explicitly recognizes the fetus as a person.”
Perhaps the most egregious case where laws forbid terminating IVF embryos involved the sale of embryos with serious genetic diseases to other countries for implantation. In one case, an IVF facility in Georgia sold embryos with hemophilia to an Israeli IVF facility, which bought them with full knowledge of the condition and then implanted them in women without their knowledge. While a fraud investigation is ongoing, this is slight comfort to the women involved.
Defining Personhood
Of greater concern to many is the implication of applying a definition of personhood to embryos -- and the failure of the Alabama legislation to comprehensively deal with that question. The American Society for Reproductive Medicine [ASRM] considered Alabama’s legislation a temporary solution, not addressing whether a fertilized egg is legally equivalent to a child, “leaving IVF physicians and clinics at risk of liability for continued IVF treatments.” The Pregnancy Justice Institute compiled an in-depth report detailing these implications and provided recommendations. Their primary recommendation, “Pass Affirmative Laws that Explicitly Reject Personhood,” is unworkable.
“Labeling a frozen embryo as either person or property (or even some intermediate status) can take on deep meaning because of the emotional symbolism attached to such categorization. We have solid knowledge that minds are unlikely to be changed… making compromise or productive policy making illusive.”
-Dean Judith Daar, Chase University School of Law
“Too Many Daves”
In Dr. Suess’s story, Too Many Daves, a mother laments the confusion generated by naming all her 23 children “Dave.” A similar issue arises when we use the term “personhood” to apply to all stages of fetal development. Biology uses different terms to describe the varying stages: from morula (little mulberry) to blastocyst, both technically “pre-embryos,” to embryo (which begins 14 days post fertilization) and then fetus (two months after fertilization). [2] Shouldn’t legal and societal constructs be similarly nuanced?
Reaching societal agreement on how that will stack out will be nearly impossible, as individuals are often internally conflicted. Indeed, a simplistic nomenclature describing stages of development or rights of the conceptus only complicates matters. One manifestation of internal conflict is people's difficulties in disposing of their own gametes. Would-be parents are reluctant to terminate the increasing number of eggs and embryos remaining in Deep Freeze. IVF facilities are equally reluctant to destroy them without consent for fear of liability or even societal outrage. My first tour of an Israeli IVF facility imprinted the problem in my mind: seeing a lab crowded with scores of vats of frozen sperm, some decades old, displacing room for new ones.
As Stat reports,
“Estimates on how many frozen embryos exist in the US vary significantly. According to the Society of Assisted Reproductive Technology, 400,000 embryos have been frozen since the 1970s. The Health and Human Services department estimates 600,000, while the National Embryo Donation Center puts the figure close to 1 million.”
Even gamete owners who do not equate the embryo as a “person” or “human being” are reluctant to “pull the plug,” with some continuing to pay the “warehousing” fee for years. Others just abandon the embryo, hoping the “problem” will disappear. Yet, should the Alabama decision infect other courts (and there is some evidence West Virginia is leaning in that direction), liability could attach to potential parents relinquishing control of their embryo to an IVF facility, possibly subjecting them to claims of criminal neglect.
A conference I attended in Israel four years ago illustrates the widespread ambivalence. As I wrote then:
“The cost to maintain these entities was high (estimated to be 1.6 billion NIS over ten years) [3]; the donors of the genetic material who had no further need for them didn’t want to make the hard decisions regarding their future – abandoning their genetic material and decisions relating to its future to the wisdom of IVF facility operators. Few …. wanted to take responsibility for the future determination of these pre-embryos either. IVF facility directors wanted to clear their shelves – but were frightened about actively disposing of them, mostly fearing liability. The most important outcome, however, was the fact that avoidance was the prevailing way of dealing with the problem.”
The ASRM advises it is ethically acceptable to dispose of unclaimed embryos after a designated passage of time (five years is recommended). By contrast, the British Government just announced plans to increase the limit on “social” (i.e., non-medical) freezing of eggs and embryos from ten to 55 years (bringing it to parity with medical cryopreservation), albeit with a requirement that patients renew their consent for storage every ten years. What facilities will do if consent is not renewed remains to be seen. Whether the destruction of abandoned embryos will be considered “murder,” as it might be in some US jurisdictions, is yet another conundrum.
Embryo and Stem Cell Research
The binary view of the embryo as either a person or non-person is too simplistic to facilitate answers to questions that are more moral than legal or even ethical. And the problem applies equally to research. And while IVF’s inherent embryo destruction proceeds, the research community is focused on extending the allowable time for embryo experimentation from 14 to 28 days.
Eleven states have already banned, or “effectively banned,” research on embryos and embryonic stem cells, while other states have laws expressly allowing such research. Scientists studying various diseases, including Down Syndrome, Alzheimer’s, cancer, immunology, and HIV, are dependent on embryonic and fetal cell research. This research is in jeopardy now that “personhood” status is being applied in certain jurisdictions to entities that are not even biologically embryos. Some laboratories are even looking overseas to obtain supplies.
The complex legal and ethical landscape surrounding the status of embryos in the context of IVF and research presents a multitude of challenges for lawmakers, medical professionals, and society as a whole. The recent court decisions and legislative actions attempting to address issues related to personhood have fallen short of providing comprehensive solutions. As court decisions continue to shape the legal framework, it is evident that there is no easy resolution to these deeply nuanced issues.
[1] Skinner v. Oklahoma, 316 US 535, 536 (1942).
[2] The same dilemma exists, generating confusion about when abortion procedures are allowable.
[3] about a half billion US dollars.
