Frozen in perpetuity: ‘abandoned embryos’ in Canada

Abstract

The matter of ‘abandoned embryos’ arises when surplus IVF embryos are frozen and stored for later use. If the fertility clinic 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.

Human Reproductive Cell Cryopreservation, Storage, Handling, and Transport: Risks and Risk Management

“…26 Some jurisdictions have responded to this legal and ethical challenge by enacting legislation that limits the term of cryostorage to, for example, 5 years in Denmark and 10 years in the United Kingdom, New Zealand, and parts of Australia. 27 However, the situation in most countries may be described as it has been for Canada by Cattapan and Baylis: 27 "…neither legislation nor regulations have adequately addressed so-called abandoned embryos, leaving fertility clinics and storage facilities in the precarious position of either discarding them in an unclear regulatory environment, or storing them in perpetuity." Indeed, most informed consents obtained from patients prior to cryopreservation stipulate that nonpayment of storage fees would lead to discarding of their reproductive cells, but in practice, at least in the United States, this is rarely done for obvious reasons.…”

“…28 The most effective strategies to prevent abandonment and encourage patients to meet their contractual obligations would be based on an understanding of the reasons behind abandonment as explored in multiple studies. 27 Reasonable strategies include patient education prior to commitment to cryopreservation, and a well-thought-out informed consent that spells out possible future scenarios and all disposition options available to the patient. Maintenance of regular contact with the patient through good billing practices should also help reduce the chances of abandonment.…”

Legal Issues in Gamete and Embryo Cryopreservation: An Overview

“…37 In Canada, there is no federal law mandating the destruction of stored frozen embryos, 45 creating confusion when written instructions created in accordance with the Assisted Human Reproduction Act do not provide adequate guidance regarding the use or discard of frozen embryos. 46 For example, "the instructions may only address anticipated "own use," and may not include instructions for use by others or instructions for eventual discard (when "own use" or "use by others" is not an option)." 46 As in the United States, a second problem in Canada, and around the world, is that even when there are consent forms or contracts with clear instructions about use and discard, absent laws requiring discard, clinics and cryostorage facilities are often unwilling to act when the embryo providers cannot be contacted to affirm or withdraw their original consent.…”

“…46 For example, "the instructions may only address anticipated "own use," and may not include instructions for use by others or instructions for eventual discard (when "own use" or "use by others" is not an option)." 46 As in the United States, a second problem in Canada, and around the world, is that even when there are consent forms or contracts with clear instructions about use and discard, absent laws requiring discard, clinics and cryostorage facilities are often unwilling to act when the embryo providers cannot be contacted to affirm or withdraw their original consent. 47,48 It is important to recognize that long-stored embryos are not necessarily "abandoned" by the patients who created and stored them.…”

Cryopreservation of Embryos and Gametes: Past, Present, and Future

“…Even with permiting signed patient consents, clinics are hesitant to act and discard unclaimed embryos, largely because of the lack of regulatory guidance [135], leaving clinics vulnerable to unanticipated legal ramiications. Recently, several solutions have been proposed.…”