by Lori Andrews

What do Nadya Suleman and Barack Obama have in common?  The mother of octuplets and the President whose Executive Order allows funding for embryonic stem cell research have raised questions about the fate of frozen human embryos.

Over half a million human embryos are frozen in in vitro fertilization clinics across the country.  After Glenda and Scott Lyons had a child through in vitro fertilization, they decided to donate their 14 excess embryos to two other couples.  This month's Good Housekeeping contains an in-depth report of the couple’s decision and the unique family tree that resulted, with seven biological siblings being raised in three different families. 

Couples with frozen embryos generally give thought to a range of options when they decide not to use the embryos themselves.  These options include:  donating them to another couple, donating them for research, and terminating the embryos.

These personal decisions are made against the backdrop of laws in various states which might limit couples' choices for the future of their embryos.  With respect to donation of embryos, the difficulty is that few state statutes clarify the legal status of the child born to an embryo recipient.  Most states have laws for artificial insemination and at least 9 states have laws for egg donation.  What if one or both of members of the recipient couple die?  Will the donor couple be liable for child support?  Will they be sued for wrongful birth if the child has a genetic disorder? 

Only a handful of states –- such as Florida –- have begun to address the legal issues raised by embryo donation.  Under Florida Statute 742.14, the couple who donates an embryo gives up their parental rights.  The statute also provides that donors cannot be paid for the embryos, though they can receive "reasonable compensation directly related to the donation of the embryos." In other states, new laws are needed to clarify the rights of the donating couple and the recipient couple.

State laws sometimes cut off options entirely.  The option of terminating the embryo is not always available, despite a woman's right to choose an abortion.  The provisions of a Louisiana statute create various responsibilities toward IVF embryos. The law characterizes an IVF embryo as a "juridical person" until implantation.  As a juridical person, the embryo may not be intentionally terminated.  The law also provides that "any physician or medical facility who causes in vitro fertilization of a human ovum in vitro will be directly responsible for the in vitro safekeeping of the fertilized ovum."  Upon motion of any party, a court may appoint a curator to protect the embryo's rights, which include the right to sue and be sued.

With President Obama's decision to offer federally-funded research on human embryos, the policy protections for couples undergoing in vitro fertilization will come under more scrutiny.  Often couples are merely asked whether they will donate embryos for research.  In advance of being asked to donate embryos for stem cell research, they should be told the specifics of the research and should also be told whether the stem cell lines will be sold and whether their embryos will be turned into commercial products.

And what if the members of the couple disagree about the disposition of the embryo?  A study reported in the New England Journal of Medicine indicated that couples, as often as 71% of the time, will change their minds at some point during the in vitro process about the disposition of any left over embryos created.

Policymakers need to establish clear guidelines for the disposition of frozen embryos.  Until legislators, courts, and clinics develop appropriate policies covering couples' decisions with respect to their embryos, the scores of human embryos in clinics across the country will be in limbo.