Aanis Elspas is a mother of four. Unlike most parents, she had three of her children simultaneously. The nine-year-old triplets were born in 1997 after Elspas underwent a series of in vitro fertilization treatments for infertility. Her oldest child, 10, is the happy result of a prior IVF treatment round. Elspas worked hard to get her children, and is grateful to have them. But four, thanks very much, are plenty. The problem is that Elspas also has 14 embryos left over from the treatment that produced her 10-year-old. The embryos are stored in liquid nitrogen at a California frozen storage facilityāshe is not entirely sure whereāwhile Elspas and her husband ponder what to do with them.
Give them away to another couple, to gestate and bear? Her own childrenās full biological siblingsāraised in a different family? Donate them to scientific research? Let themā¦finallyā¦lapse? It is, she and her husband find, an intractable problem, one for which there is no satisfactory answer. So what they have doneāthus farāis nothing. Nothing, that is, but agonize.
āI donāt have the heart to thaw them,ā says Elspas, who works as media relations director for a multi-birth networking group called the Triplet Connection. āBut then again, I donāt have the will to do something with them.ā
Elspas is by no means alone, either in having frozen human embryos she and her husband must eventually figure out what to do with, or in the moral paralysis she feels, surveying the landscape of available choices. In fact, she is part of an explosively growing group. In 2002, the Society for Assisted Reproductive Technologyāthe research arm for U.S. fertility doctorsādecided to find out how many unused embryos had accumulated in the nationās 430 fertility clinics. The rand consulting group, hired to do a head count, concluded that 400,000 frozen embryos existedāa staggering number, twice as large as previous estimates. Given that hundreds of thousands of IVF treatment rounds have since been performed, it seems fair to estimate that by now the number of embryos in limbo in the United States alone is closer to half a million.
This embryo glut is forcing many people to reconsider whatever they thought they thought about issues such as life and death and choice and reproductive freedom. Itās a dilemma that has been quietly building: The first American IVF baby was born in 1981, less than a decade after Roe v. Wade was decided. Thanks in part to Roe, fertility medicine in this country developed in an atmosphere of considerable reproductive freedom (read: very little government oversight), meaning, among other things, that responsibility for embryo disposition rests squarely with patients. The number of IVF rounds, or ācycles,ā has grown to the point that in 2003 about 123,000 cycles were performed, to help some of the estimated 1 in 7 American couples who have difficulty conceiving naturally. Early on, it proved relatively easy to freeze a lab-created human embryoāwhich unlike, say, hamburger meat, can be frozen, and thawed, and refrozen, and thawed, and then used. (To be precise, the technical term is āpre-embryo,ā or āconceptusā; a fertilized egg is not considered an embryo until about two weeks of development, and IVF embryos are frozen well before this point.) Over timeāas fertility drugs have gotten more powerful and lab procedures more efficientāit has become possible to coax more and more embryos into being during the average cycle. Moreover, as doctors transfer fewer embryos back into patients, in an effort to reduce multiple births, more of the embryos made are subsequently frozen.
And so, far from going away, the accumulation of human embryos is likely to grow, and grow, and grow. And in growing, the embryo overstock is likely to changeāor at least complicateāthe way we collectively think about human life at its earliest stages, and morally what is the right thing to do with it. At some point, embryos may alter or even explode the reproductive landscape: It is IVF embryos, after all, that are at the center of the nationās stem cell debate, which itself has prompted a new national conversation about life and reproductive liberty, creating new alliances as well as schisms. In 2001, as one of his first major domestic policy decisions, George W. Bush banned federal funding for labs developing new stem cell lines using leftover IVF embryos; then in May 2005, the U.S. House of Representatives passed a bill approving funding for stem cell research using these same embryos, setting the stage for an eventual conservative showdown. In the course of this debate, embryos have emerged as another tool for truly hardline conservatives looking for new ways to beat back abortion rights. Like āfetal rightsā laws that seemingly protect unborn children from acts of homicide, āembryo rightsā are being waved about as a weapon in the assault on abortion rights, as anti-abortion lawmakers talk about seizing control over frozen embryo stores; limiting the creation of new embryos; or both.
But the impact of the embryo is also taking place on a more subtle and personal level. The glutās very existence illuminates how the newest reproductive technologies are complicating questions about life; issues that many people thought they had resolved are being revived and reconsidered, in a different emotional context. As with ultrasound technologyāwhich permits parents to visualize a fetus in uteroāIVF allows many patients to form an emotional attachment to a form of human life that is very early, itās true, but still life, and still human. People bond with photos of three-day-old, eight-cell embryos. They ardently wish for them to grow into children. The experience can be transforming: āI was like, āI created these things, I feel a sense of responsibility for them,āā is how one IVF patient put it. Describing herself as staunchly pro-choice, this patient found that she could not rest until she located a personāactually, two peopleāwilling to bring her excess embryos to term. The presence of embryos for whom (for which?) they feel a certain undefined moral responsibility presents tens of thousands of Americans with a dilemma for which nothingānothingāhas prepared them.
A new demographic is wrestling with questions initially posed by contraception and abortion. A world away from the exigencies, mitigating circumstances, and carefully honed ideologies that have grown up in and around U.S. abortion clinics, it is people like Janis Elspas who are being called upon to think, hard, about when life begins, and when it isāor is notāright to terminate it. They are in this position, ironically enough, not because they donāt want a family, but precisely because they do. Among the nationās growing ranks of IVF patients, deciding the fate of frozen embryos is known as the ādisposition decision,ā and it is one of the hardest decisions patients face, so unexpectedly problematic that many decide, in the end, to punt, a choice that is only going to make the glut bigger, the moral problem more looming and unresolved.
āAre they people? Arenāt they people?ā
To show just how difficult embryo disposition can be: Dr. Robert Nachtigall, a veteran San Francisco reproductive endocrinologist, directed a study of patients who had conceived using IVF together with egg donation, another rapidly growing niche of fertility medicine. As Nachtigall and his colleagues at the University of California-San Francisco were interviewing these parents, they were struck by comments made, separately, by several couples.
Hard as it was deciding whether to go ahead with egg donation, these parents said, it was harder still deciding the fate of their leftover embryos.
āUntil recently, I donāt know if any of us were aware of the scope of the embryo dilemma,ā Nachtigall told colleagues at the 2005 annual meeting held by the American Society for Reproductive Medicine (ASRM), the trade group for fertility doctors. Struck by these unprompted revelations, he and fellow researchers decided to do a new study, this one looking explicitly at the way patients think about their unused, iced-down embryos. The study was published in 2005 in the journal Fertility and Sterility. Strikingly, Nachtigall found that even in one of the bluest regions of the country, which is to say, among people living in and around San Francisco, few were able to view a three-day-old laboratory embryo with anything like detachment. āParents variously conceptualized frozen embryos as biological tissue, living entities, āvirtualā children having interests that must be considered and protected, siblings of their living children, genetic or psychological āinsurance policies,ā and symbolic reminders of their past infertility,ā his report noted. Many seemed afflicted by a kind of Chinatown syndrome, thinking of them simultaneously as: Children! Tissue! Children! Tissue!
An earlier study, conducted by psychologist Susan Klock and colleagues at the Northwestern University School of Medicine, found that many patients begin IVF with some notion about how they will dispose of surplus embryos. (The choices come down to five: use them; donate them for research; donate them to another infertile person; freeze them indefinitely; or have them thawed, that is, quietly disposed of.) What Klock also reported was that many couples found their thinking transformed once treatment was over. More than half the couples who had planned to dispose of their embryos decided, instead, to use them, or donate them. Conversely, seven of the eight couples who had planned to donate them to research decided to use them, or dispose of them. Nearly all who had planned to donate their embryos to another couple found that, when push came to shove, they could not relinquish their potential genetic offspring. In short: Almost all reconsidered, not in any way that could be neatly summarized. All in all, 71 percent changed their minds about what to do. Also striking: Only about half of patients with embryos stored for more than three years could be located. The rest were incommunicado.
Nachtigallās study elaborated on these findings. Couples, he found, were confused yet deeply affected by the responsibility of deciding what to do with their embryos. They wanted to do the right thing. All of the 58 couples in his study had children as a result of treatment, so they knew, well, what even three-day-old embryos can and do grow into. (Nachtigall is currently studying a much larger sample of couples, where both egg and sperm come from the parents. It should answer the question of whether couples who use donor eggs are in any way distinct in their thinking about embryos.) āSome saw them as biological material, but most recognized the potential for life,ā Nachtigall told colleagues at the asrm meeting. āFor many couples, it seems there is no good decision; yet they still take it seriously morally.ā
For virtually all patients, he found, the disposition decision was torturous, the end result unpredictable. āNothing feels right,ā he reported patients telling him. āThey literally donāt know what the right, the good, the moral thing is.ā In the fluid process of making a decisionāany decisionāsome try to talk themselves into a clinical detachment. āLittle lives, thatās how I thought about them,ā said one woman. āBut you have to switch gears and think, āTheyāre not lives, theyāre cells. Theyāre science.ā Thatās kind of what I had to switch to.ā Others were not able to make that switch, thinking of their embryos as almost sentient. āMy husband talked about donating them to research, but there is some concern that this would not be a peaceful way to go,ā said one woman. Another said, āYou start saying to yourself, āEvery one of these is potentially a life.āā
Many were troubled, Nachtigall said, by the notion of donating embryos to research or to another couple, and thereby losing control over their fate and well-being; they seemed to feel a parental obligation to protect their embryos. āI couldnāt give my children to someone else to raise, and I couldnāt give these embryos to someone else to bear,ā said one woman. Another woman described her embryos as a psychic insurance policy, providing āintangible solaceā against the fundamental parental terror that an existing child might die. āWhat if [my daughter] got leukemia?ā said yet another, who considered her frozen embryos a potential source of treatment. A patient put the same notion more bluntly: āYou have the idea that in a warehouse somewhere thereās a replacement part should yours get lost, or there is something wrong with them.ā
For others, embryos carried a price tag that made them seem like a consumer good; a few parents considered destroying them to be a āwasteā of all the money spent on treatment.
āYou weigh whatās best,ā Nachtigall quoted one parent as saying, but whatās best is not, often, clear. This parent continued: āAre they people? Arenāt they people? In part of my mind, theyāre potential people, but the point is, it seems odd to me to keep them frozen forever. It seems like not facing the issue.ā A patient who had decided to donate embryos for research said, āWeāve agreed that itās the right thing for us to do, but the final step is to get the forms notarized, and we havenāt done it. I will honestly say that it will be a day of mourning.ā
For those couples who did reach a decision, the resolution came as a great relief, bringing with it, his report noted, āa profound sense of completeness and resolution.ā
Nachtigall also found that patients sometimes disposed of embryos in novel ways that fell short of actual plug-pulling. In a version of the rhythm method of contraception, he learned, some patients (though none of the ones in his study) solved their dilemma through the laboriousāand expensiveāprocess of having leftover embryos transferred into the womanās uterus at a time in her monthly cycle when implantation would be unlikely. Others buried embryos. Still others could not bring themselves to dispose of them at all. āWeāll have a couple more pregnancies and weāll just grow the whole lot,ā one father told Nachtigall and his team.
Of the 58 couples Nachtigall and his group interviewed, the average couple had seven frozen embryos in storage. The average embryo had been in storage for four years. Even after that much time had elapsed, 72 percent had not decided what to do, and a number echoed the words of one patient: āWe canāt talk about it.ā The embryos keep alive the question of whether to have more children, a topic on which many spouses disagree. āI still have six in the bank,ā said one woman, who had not given up the idea of bearing them. āThey call to me. I hate to talk about it. But they call to me.ā Her words are reminiscent of a comment made by the singer Celine Dion, who, after undergoing IVF in 2001, later said, in describing her plans for a second child: āThis frozen embryo that is in New York is my child waiting to be brought to life.ā
āLike pets, or natural resources, or pieces of artā
It should be noted that the confusion felt by parents is shared by the minds who guide American jurisprudence. As University of Wisconsin law professor and bioethicist Alta Charo pointed out at the 2005 asrm meeting, the embryo issue tends to emerge as a point of dispute in divorce cases. Tracing the confused path of judicial decision-making, Charo offered one situation in which a Tennessee court ruled frozen embryos to be potential children, or effectively so, andāin the courtās traditional role of acting in the best interests of children in custody suitsāawarded a batch of disputed embryos to the parent who intended to bring them to term. That decision was reversed by a second court, which chose to treat the embryos as property and proposed dividing them, like furniture, between the ex-spouses. But the stateās Supreme Court ultimately awarded the embryos to the spouse who did not intend to use them. In general, Charo said, courts tend to this latter approach: They take pains to avoid situations where one person will bring the embryos to term against the wishes of the ex-partner, privileging the right not to procreate over the desire to do so.
For the most part, courts often do regard embryos as property, but property with an elevated moral status, ālike pets, or natural resources, or pieces of art,ā as Charo put it. In Louisiana, however, embryos have been designated as ājuridical persons.ā āNo one knows what this means,ā Charo said, comparing the status of Louisiana embryos to that formerly assigned to slaves: not fully human under the law, but deserving of some rights. One thing ājuridical personā does mean is that in Louisiana, fertility clinics are forbidden to dispose of embryos. They are directed to act in the best interests of the embryos, whatever that may be: a kind of guardian ad litem of the embryo.
Similarly, the federal government, in its role as regulator, has found the embryo a slippery creature to define. In 2002, the U.S. Department of Health and Human Services began distributing grants to groups willing to raise public awareness about what the Bush administration likes to call āembryo adoption.ā Also known as āembryo donation,ā this is a process whereby embryos are relinquished by whoever created them and handed over to another couple, or person. In most states, this is essentially a property transfer, not an adoption, and advocates for the infertile, as well as old-line reproductive rights groups, fear the use of the word āadoptionā is one more attempt to confer humanhood on the embryo, a backdoor anti-abortion sally. They are right: To dramatize his opposition to federal funding for stem cell research, Bush in May 2005 posed with a group of āSnowflakesā babies, children who started life as leftover IVF embryos and were donated to other couples, thanks to the brokerage of an explicitly Christian, explicitly pro-life embryo adoption group called Snowflakes.
Inconveniently for the president, at that very moment the U.S. Food and Drug Administration was in the process of categorizing the human embryo as biological tissue, thereby putting into effect strict disease-testing requirements that would make embryo adoption, or donation, impossible. Clinics feared they would need to close down their donation programs. At the last moment, an exemption for embryos was carved out, and embryo donations were permitted to go forward. The infertility lobby was delighted and a little smug, not just because doctors and patientsā groups support embryo donation (which they do), but because ātissueā remains the designation conferred on embryos by the FDA. Like abortion rights groups, the infertility field likes this designation, which helps preserve for it total reproductive freedom by encouraging the notion of the embryo as a multicelled clump of tissue.
But the idea of potential personhood has clearly been implanted, so to speak; human embryos are going to continue to be a political battleground as anti-abortion advocates include them in the umbrella concept of āpre-born life.ā During last yearās stem cell debate, then-House Majority Leader Tom DeLay referred to embryos as āliving, distinct human beings,ā while a conservative columnist referred to them as āmicroscopic Americans.ā The president calls them ānascent human life.ā As Slateās Will Saletan has pointed out, pro-life lawmakers periodically threaten all-out war on the reproductive liberty enjoyed by IVF patients; Republican Rep. Chris Smith of New Jersey hinted at this when he said, āThe public policy we craft should ensure that the best interests of newly created human life is protected.ā Senator Sam Brownback (R-Kan.) has suggested that the government should limit the number of embryos created to one or two per IVF cycle.
Unnerved, advocacy groups for the infertile and those who serve them called a press conference in 2005, where Sean Tipton, spokesman for ASRM, said that āpatients control and make the decision about what happens with those embryos, and thatās the way it is now, and itās important that thatās the way it stays.ā The problem is that many patients do view embryos as nascent human life and, paralyzed by this thought, cannot decide how to decide.
Itās an issue that affects anybody with an interest in reproductive issuesāwhich is to say, pretty much every American. Some think that the embryo glut may offer the next serious challenge to Roe. āFor the moment couples still have dispositional control, but I predict that that is going to be challenged very soon,ā Alta Charo said at the 2005 meeting, speaking to doctors and fertility clinic staffers. Arguing that pro-life advocates can taste ātotal victoryā after āan ongoing nibble-at-the-edges battleā involving statehouse measures like informed consent and mandatory waiting periods, Charo predicted that somewhere, soon, āsome obscure legislatureā will propose to seize control of frozen embryos, the measure will be challenged, and the ensuing lawsuit will end up in the U.S. Supreme Court. Traditionally, she pointed out, abortion rights involves weighing the interests of the woman against those of the fetus, and up to now the womanās interests have been considered paramount. But now the interests of the embryo, or fetus, or potential child, can be separated out. This, she said, is a watershed development.
For those who want to test the core of Roe v. Wade, Charo told the fertility specialists, āyou guys are the perfect opportunity to separate the question of embryos and best interests, and the womanās right to direct her body. You take a law like Louisianaās, saying that personhood begins at conception, and that you cannot discard embryos. Now the Supreme Court has the ability to look at the status of the embryo, not as compared with the womanās right to control what she wants to do with her body. There is no bodily interest. Itās entirely possible that the first real challenge to Roe will be looking at the embryo in isolation. The question about discard is very, very important. This will be where they start their litigation strategy, to chip away at Roe.ā
It should be pointed out, however, that even anti-abortion conservatives are not united in their ideas about the embryo and whether it has rights, or best interests, or even the potential for life. Once a person contemplates an embryoāreally looks at it, under a microscope or in a photographāhis or her opinion is often changed, and not in any consistent or predictable direction. This is true for pro-choice and pro-life alike. While researching a book on assisted reproduction and its impact, I interviewed California Rep. Dana Rohrabacher, a reliably anti-abortion Republican member of the House. Rohrabacher was one of some 50 Republicans who defied the president by voting in favor of federal funding for stem cell research using surplus IVF embryos. For Rohrabacher it was not abstract: He and his wife, Rhonda, went through IVF treatment and have triplets as a result.
Going through that process, Rohrabacher told me, fundamentally changed his thinking about life and its origins. āFor a long time Iāve been pro-life, and I still consider myself to be pro-life,ā he reflected, sitting on the front porch of his Huntington Beach bungalow, which, inside, had been taken over by the demands of triplet care. āI have done a lot of soul-searching but also a lot of rethinking about reality, and whatās going on here, and I have come to the conclusion that Iāmā¦first, Iām still pro-life. But I always said that life begins at conception. Butā¦I was always predicating that on the idea that life begins at conception when conception begins in a womanās body.ā
Now, Rohrabacher realizes, conception can take place outside the human body. That, for him, is a meaningful difference. The crux of the matter: Is the embryo in the womb, or is it in a lab? āI donāt think that the potential for human life exists in a human embryo until itās implanted in a human body. So you are not destroying a human life by basically not using a fertilized egg. These are not potential human lives until they are implanted in a body. Left alone, they will not become a human being. When they are implanted in a female body, they have a chance to become a human being, so I still would be opposed to abortion.ā
āPeople do not want to inherit embryosā
Less examined has been the fact that the embryo glut presents an immediate and pressing problem for the very people who helped create it: fertility doctors. In clinics around the country, doctors are at their witsā end trying to figure out what to do with embryos that have fallen, willy-nilly, under their moral, medical, and, possibly, legal purview. The way this happens is: When patients agree to have embryos frozen, they sign forms stating what should be done with the embryos should the patients divorce, disappear, or stop paying storage fees. After treatment has concluded, many patients eventually do stop paying, disappear, move, leave no forwarding address. In such cases, doctors are, at a certain point, technically free to dispose of abandoned embryos. But many are reluctant to take that step. They are terrified that at some point a patient will come back and sue them forāwell, for something.
āNobody does it [destroys abandoned embryos],ā says Alan DeCherney, the editor of Fertility and Sterility and a reproductive endocrinologist who is now at the National Institutes of Health. āItās a hot topic. People think the risk of holding them is less than the risk of destroying them.ā
And the risk of holding them is considerable. āI have tons of embryos, and I canāt track down the owners,ā said one Los Angeles doctor, Vicken Sahakian of the Pacific Fertility Center, sitting in his posh Wilshire Boulevard office. Sahakian practically had his head in his hands, thinking about all those embryos. āItās one of the main problems I have. I have thousands of embryos from patients who have been through this program for, what, 10-, 12-plus years, changing addresses, and never called back, never paid storage feesāyou canāt track them down.ā Sahakian does the best he can to whittle down his own embryo glut; he runs a strong embryo donation program, encouraging couples to donate embryos to other patients and handling the logistics. He has also hired a collection agency to try to track down patients and force them to make a resolution. His ābiggest nightmare,ā he said, is that he will be unable to sell his practice when he is ready to retire, because no doctor will want to buy a practice that comes with a closetful of unclaimed embryos and the vague, terrible responsibility they entail. āThe person buying it does not want to buy the embryos. Thatās the rule,ā he said. āPeople do not want to inherit embryos. So what do you do with them? I have embryos that have been here since 1992.ā
The overages have grown to such proportions that companies now exist, solely, to manage embryo inventory. Back in 1990, Russell Bierbaum, who at the time worked for a sperm bank, had a vision of the future, and what he saw was: lots and lots of frozen embryos. So he founded a company called ReproTech, which can be hired to assume and maintain doctorsā embryo inventory, as well as handle transport, a tricky process in and of itself. (What box do you fill out, exactly, on the FedEx form? āWarning: Contains microscopic Americansā?) It took a while for the idea to come to fruition, he says, but now business is booming: He has two facilities, in Minnesota and Florida, and is constantly adding new storage tanks. Bierbaum prefers to assume responsibility for embryos soon after their creation. His employees stay in touch with patients, keeping addresses current, periodically calling to say hello and review the options. In a few instances, he says, he will take over abandoned embryos and attempt to track patients down. It is therefore people like ReproTech staff membersārather than, say, ministers or psychologistsāwho often are the ones discussing, with patients, fundamental questions touching on birth and death and life and reproduction, all the essential questions of humanity. āWe end up being the counselors without the credentials,ā acknowledges Bierbaum, ājust answering the questions, being available.ā
Itās hard to know how, exactly, the embryo overstock will go away. The rand study found that only about 3 percent of unused embryos have been slated to be donated for research. In England, unused embryos are destroyed after five years, though this government policy did not occur without controversy; the first time embryos were set to be destroyed, a group of pro-life advocates staged protests. The deadline was extended, but eventually the embryos were destroyed. Other countries, such as Germany and Italy, forbid the freezing of embryos. In those countries, every embryo made must be implanted. Both of these ideas are of course anathema to American fertility advocacy groups and to the medical field, because it would open the door to that dreaded phenomenon, governmental control over human life and its disposition.
So what are we going to do with our embryo glut? Robert Nachtigall believes that with better patient counseling and logistical coordination between fertility clinics and research labs, many more unused embryos could be directed toward stem cell research, and that many patients would be happy to know that their embryos are being used to find a cure for afflictions such as Parkinsonās disease and juvenile diabetes.
āI think itās a mistake to call it a glut,ā says Nachtigall. āI mean, these embryos are created in a process as hundreds of thousands of couples attempt to overcome infertility, and their presence is perhaps an unanticipated side effect of the use of advanced reproductive technology. But there is nothing inherently negative or wrong about their existence, and as we turn our attention to them, we may find that indeed they could be a tremendous resource for science, the country, and for mankind, for that matter.ā
The problem is, few fertility clinics counsel patients about disposition, at least not at any length; and because of the ban on federal funding, few labs can receive human embryos for research. Nor has the fertility profession served itself or its patients entirely well, encouraging the idea that embryos are multicelled clumps of tissue. They are multicelled clumps of tissue, itās true, but they are also more complicated and more emotionally fraught. One of the powerful findings of Nachtigallās study was how isolated patients felt in making the disposition decision; how they longed for counseling, advice, some sort of out-loud moral conversation between people who had been through, and thought through, the same issues. Whether the reproductive rights community might ever hold such a grand, collective conversation seems unlikely, in this charged political atmosphere. But it would be useful, to put it mildly.
Meanwhile, the technology itself is so new that nobody knows what the expiration date on embryos might be. Might all these embryos become nonviable and nonproblematic? Unlikely. Recently, a San Francisco woman gave birth using an embryo that had been frozen for 13 years. So patients like Janis Elspas continue to agonize over their aging embryonic stores. An Orthodox Jew, Elspas believes her religion would permit her to quietly terminate what are, basically, little more than fertilized eggs. āBut considering all the pain and suffering we went through to get those embryos, I still consider it the destruction of a God-given gift.ā
After weighing all the options, and rejecting them, one patient says wryly, but a little wearily: āMaybe when I die, theyāll just bury my embryos with me.ā