Throwing out embryos

Many tens of thousands of embryos lie abandoned in cold storage. Clinics are afraid to destroy them. Should they be? 

The freezers are getting full. The costs are high. The liability is heavy. But fertility clinics continue to hold on to embryos — sometimes for decades.

The embryos that people clearly want and are paying to store are not at issue. It's those other embryos — the ones they thought they might need but in the end didn't, the ones they couldn't quite decide what to do with, the ones that are too important to toss but not important enough to keep. For the conflicted, the default is often to simply stop responding to the fertility clinic and let storage fees lapse. And that leaves clinics in a quandary. 

"Everybody is worried about the liability of destroying an embryo, then having a patient come back and say they wanted it," says Sherry Levitan, a Toronto fertility lawyer. But clinics shouldn't be worried, says Levitan, especially if they follow certain practices. Levitan points to three examples of how the law supports a clinic's right to dispose of an abandoned embryo.

Contracts 

Most clinics have policies about abandoned embryos. If a patient signs a contract acknowledging the clinic's policy, the clinic has the right to act on that policy, says Levitan. Some clinics say they will dispose of an embryo if the patient doesn't respond or pay for a stipulated number of years. The American Society for Reproductive Medicine (ASRM) currently advises that, even without a policy, five years without contact constitutes abandonment. Under no circumstances, says the ASRM, should abandoned embryos be given to other couples or used in research. But they can in good conscience be thawed and discarded. 

Bailment

Most bailment cases deal with things like fences and cows, says Levitan, but at its heart, this area of common law is about what level of responsibility a person has when holding the property of someone else. There is a different responsibility imposed depending on whether that person is being paid or just doing it voluntarily — or involuntarily.  

"The courts have taken the opinion that once a person stops paying, then the nature of the relationship changes," says Levitan. When a patient stops paying for embryo storage, the clinic becomes an involuntary bailee, she says. Its duty changes. 

Lam v UBC

Levitan also highlights an interesting case from British Columbia. In Lam v University of British Columbia, men who were about to undergo treatment for cancer elected to freeze and store their sperm first. Unfortunately, in 2002, the freezer cut out, and the sperm samples were damaged. 

Together, in a certified class action, more than 400 affected men sued. One of the issues the case examined was whether human reproductive tissue could be considered property. The judge ruled that it could.

But there were other things to learn from the case as well, says Levitan. 

One was: what does a lab have to do before getting rid of such samples? During the course of the long legal fight, the lab holding the damaged samples closed. It applied to the court, says Levitan, for the right to destroy the unclaimed damaged sperm. 

The lab had had a process in place to notify the men, and it had mailed, emailed, called and used registered post in an attempt to do so, says Levitan. It documented all attempts. Still, not all men had responded. Could it destroy the sperm?

The court took a very commercial position, says Levitan. It advised the lab to take one final step and advertise that the samples were going to be destroyed, specifying the day that would happen. The lab did so.

"That's the answer right there," says Levitan. "Have the consent to say you have the right to do it. Have a process in place so that everybody is content that the patients had every opportunity to save the gametes. Then take a commercial approach."

Another interesting outcome regards who got compensated. In a negotiated settlement, some $6 million was split among the men whose sperm had been damaged. How much they got was determined by a point system. Notably, men who had abandoned their samples — "had received annual invoices and were two or more years in arrears" — got zero points. And, underscores Levitan, zero money. 

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Email me at alison.motluk@gmail.com. 

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