The matter of ‘abandoned embryos’ arises when surplus IVF embryos are frozen and stored for later use. If the fertilityclinic or storage facility in question does not have clear direction about what to do with these embryos, and/or payment for storage ceases, and/or the embryo providers cannot be reached, the embryos raise an ethical and practical challenge. On the one hand, there is a commitment to respect the autonomy of embryo providers to determine what should happen to their frozen embryos. On the other hand, there are weighty reasons why fertility clinics and storage facilities do not want responsibility, potentially in perpetuity, for other people’s frozen embryos. This article examines the matter of ‘abandoned embryos’ – the emergence of the term, its use in policy and law, and its implications in the Canadian case. We demonstrate that despite an intricate legislative framework, there are important gaps that leave fertility clinics and storage facilities in the tenuous position of discarding ‘abandoned embryos’ without clear authorization, or storing them indefinitely. We argue that clarity in consent procedures coupled with flexible time limits on embryo storage provide an approach that can best serve the interests of all involved.Catalan notes that
On 30 November 2012, the British Columbia Women’s Centre for Reproductive Health ceased operations. At the time, the Centre had frozen human sperm and embryos in storage formore than 1200 people. While preparing to close its doors and afterwards, staff at the Centre tried to contact all persons with sperm and embryos in storage to ascertain their wishes regarding transfer to another fertility clinic ordiscard. The staff made hundreds of telephone calls, sent letters by registered mail, issued second mailings to alternate addresses for letters that were returned to sender, and hired a skip tracer to track individuals. The Centre also petitioned the British Columbia Supreme Court for an order permitting the sperm and embryos in storage to be discarded. A Court order was granted validating the Centre’s authority to discard the frozen sperm and embryos (Lam v University of British Columbia 2013 BCSC 2142). With this decision in hand, the staff made a final effort to reach those with sperm or embryos in storage in order to be able to act on their wishes, and then discarded what materials remained.
The uncertainty experienced by the British Columbia Women’s Centre for Reproductive Health about what to do with the sperm and embryos stored in their fertility clinic was unique because of the circumstances precipitating decision-making – namely, closure of the clinic. In important respects, however, this uncertainty is commonly experienced by fertility clinics and storage facilities in jurisdictions without legislated time limits, as they struggle to understand the scope of their obligations regarding what have been described as ‘orphaned embryos’ or more commonly ‘abandoned embryos’. These are embryos placed in storage by people who are now ‘lost to follow-up’ – people who have completed or dropped out of fertility treatment, stopped paying storage fees, and are not able to be contacted by the clinic or storage facility to confirm or provide wishes regarding the future use or discard of frozen embryos no longer wanted for ‘own’ reproductive use.
In the literature, a range of terms is used to describe various options for using or discarding embryos. For example, the term ‘disposition’ is often used to refer to options that include both using embryos and discarding them. ‘Transfer’ often refers to making use of embryos for one’s own reproductive purposes, or the reproductive purposes of others, but can also refer to donation to research. Embryos being discarded are often described in terms of ‘destruction’ or ‘disposal.’ For clarity, we differentiate between ways of ‘using’ embryos (which include own reproductive use, third-party reproductive use, improving assisted reproduction procedures, providing instruction in assisted reproduction procedures, and research) and ‘discarding’ embryos when no such use is to occur before the embryos are destroyed.
This article proceeds in four parts. First, we provide a history of how the term ‘abandoned embryos’ came into common parlance and identify its contemporary scope, focusing on the Canadian case. Although the term rarely appears in official public policy or law, it continues to be used by professional medical associations (ASRM, 2013; O’Neill and Blackmer, 2015), in popular media (Blackwell, 2013; Kirkey, 2013) and by clinicians (Elford et al., 2004) in Canada, the United States, the United Kingdom, and elsewhere. Second, we trace the introduction of the current regulatory framework in Canada governing embryo use. We show how this framework anticipates the need for clear directives for the future use of embryos in storage, but does not include any provisions for discarding unused embryos. Third, we briefly review Canadian case law relevant to the question of how ‘abandoned embryos’ should be handled. Finally, we conclude that legally valid written instructions in consent forms regarding the use or discard of frozen embryos should be respected (i.e. acted upon), and that those instructions should be constrained by clear legislated time limits on embryo storage. In jurisdictions that do not have a legislated limit on embryo storage, this approach can best serve the interests of all concerned parties – persons with embryos in storage, fertility clinics and storage facilities.