Embryo freezing is a process whereby an egg that has already been fertilized (through in vitro fertilization with either a partner or donor sperm) is frozen until the couple or woman is ready to conceive. Many women choose this process if they are going to start a fertility-damaging medical treatment, or if they want to postpone having children. It is in fact, one of the most popular ways to preserve one’s fertility – 80 to 90 percent of embryos survive the thawing process, and they have an on-going pregnancy rate that is very similar to that of fresh embryo transfers.
The most contentious dilemma surrounding embryo freezing however, is what to do with them if and when they are no longer needed. Unlike in cases of egg freezing (where a women’s eggs are retrieved and left unfertilized until she is ready to use them), surplus or unwanted frozen embryos often lead to religious and ethical disputes related to when life begins (whether at conception or birth). They further raise legal issues related to ownership.
Recently, we have seen these embryo wars tear apart celebrity divorces and break-ups. Whilst some couples have been surprisingly agreeable about what to do with their frozen embryos, others have not been as lucky or amicable.
Derek Fisher, former NBA player and coach, and ex-wife, Candace Fisher, for example, have come to a mutual agreement regarding the embryos they had frozen during their marriage. Court documents suggest that the Fishers are on the same page when it comes to their frozen embryos and have no hard feelings – they reportedly signed papers agreeing to destroy them, as part of their divorce settlement.
Sofia Vergara and ex-fiancé, Nick Loeb, however were not as agreeable about their frozen embryos. According to TMZ, Vergara wished to leave the embryos frozen indefinitely, whist Loeb (who believes in life from the moment of conception) wanted to father his two unborn girls. Loeb then sued Vergara for the right to bring the embryos to term – arguing that Vergara’s desire to keep them frozen was no different than having an abortion. Months later, their legal battle over the fate of their frozen embryos is supposedly still deadlocked.
In Canada, pursuant to section 8 of the Assisted Human Reproduction Act (AHRA), spouses or common-law partners are required to provide joint consent when wanting to use or donate embryos created for reproductive use. The AHRA further allows one party to unilaterally withdraw their previously given consent, in writing, prior to the embryos being used, thawed or designated for a specific purpose – this means that either party can change their mind and prevent the other from using the embryos).
The AHRA however, does not specify what happens if and when parties cannot come to an agreement and provide joint consent. Canadian fertility clinics often ask clients to sign consent forms indicating what should happen to embryos if they later cannot come to an agreement. This then raises the issue of whether such consent forms or ’embryo disposition agreements’ are legally enforceable. If legally enforceable, this could enable couples to contract around the right to revoke consent, thereby allowing embryos to be used even if one spouse later changes their mind; such contract could also provide that the embryos be destroyed even if one spouse wishes to use them.
Decisions regarding frozen embryos are clearly not easy. Therefore, if you intend on using this process with a partner, in order to avoid later complications, it may be wise to jointly discuss the implications and potential consequences of surplus or unused frozen embryos.