Earlier this year, a Chicago judge allowed Alison Miller and her husband Todd Parish to file a wrongful death suit against the fertility clinic that inadvertently destroyed the couple's frozen embryo. In an unrelated case, three Rhode Island women were awarded compensation for emotional distress and loss of property in a similar case three years ago. Now Missouri and Louisiana have laws protecting the legal rights of embryos; and Virginia even appoints legal counsel to embryos undergoing testing.
With new laws like these on the books, couples with embryos frozen in fertility clinics face serious legal, ethical, and moral dilemmas as they try to decide what to do with them.
With growing numbers of couples relying on in-vitro fertilization, estimates place the number of frozen embryos in America at more than 400,000. During in vitro, doctors stimulate the woman's ovaries to release multiple eggs - for most women, one round of stimulation yields 15 or more eggs. Usually, anywhere from half to 90% of these eggs are fertilized in a process where the sperm and eggs are combined in a Petri-dish. The resulting embryos are then implanted into the woman's uterus. To avoid risky multiple births, however, only three eggs are implanted into the uterus at a time. Often, pregnancy is achieved before all the embryos have been implanted. The extras are cryopreserved - that is, frozen - and the couple must then decide what to do with them.
Couples have several options, each with ethical implications. Some couples choose to implant the extra embryos at a time during the woman's cycle when she is not likely to become pregnant. Others choose to donate the embryos for stem cell and fertility research. Still others take them home to bury, or allow them to be destroyed at the clinic.
So, in the debate over embryos, where do opponents draw the line?
Pro-life Christians have made clear that embryo destruction is tantamount to abortion. Father Michael Seger, moral theologian at Mount St. Mary's Seminary in Ohio, counsels couples with extra embryos to have them implanted as soon as possible. "One of the reasons we are so dead-set against (in-vitro fertilization) is the dilemma (couples) find themselves in after the procedure, and what to do with the extra eggs that are fertilized," says Father Seger. "When they come to me it's post-factum ... and all their Catholic intuition says, 'Oh my God, these fertilized eggs have a right to life.'"
In fact, agencies have sprung up to create a new avenue for embryos - adoption. Although there are no laws governing the adoption of embryos - legally, they are considered "property" - agencies like the Nightlight Christian Adoption Agency have development application and screening processes that mimic adoption. Their "Snowflake" adoption program matches genetic parents who do not wish to destroy or implant their extra embryos with couples who want to adopt them. Since starting the program, Nightlight has matched 212 genetic couples with 139 adoptive families. Thus far, 79 babies have been born, with 8 adopting families currently expecting at least 11 more.
Other parents, however, do not consider their frozen embryos to be human beings at all. "A frozen embryo doesn't mean life," says mother of in-vitro triplets Diane Calcaterra. "It has to sustain itself through the mother. If someone said, 'I want to adopt your two embryos,' if they put them in, that doesn't mean they would get two children out of that."
JoAnn Davidson of Christian Adoption and Family Services disagrees: "They are life from the moment of conception," she says of the frozen embryos. "There's only that one unique moment when the sperm and egg come together, and everything else is just stages of development."
Most fertility centers limit the length of time they will store extra embryos - usually from two to five years. After that time, the couple must decide what to do with them. A University of Iowa College of Medicine study examined couples whose two-year storage period had expired. When given the option of continued storage, over half of the couples chose it. Twenty percent donated the embryos for adoption, while 11 percent donated them for research. Eighteen percent chose to have the embryos discarded.
Sometimes, though, parents are not given a choice. Before closing in 1999, an Arizona fertility clinic tried to locate the parents of their frozen embryos through a classified ad. About 50 embryos were never claimed. They were discarded as medical waste.
For Steven and Kate Johnson, who adopted an embryo and now have a daughter named Zara, what happened in Arizona seems tantamount to mass murder. "Every embryo has a face," says Steve. "Zara is one of these faces. And it's up to us to shine the light in the darkness."