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One of the more challenging yet under-discussed challenges for people undergoing ART, and perhaps for society in general, is the status of “extra” embryos—embryos frozen for future use.  Myriad reasons exist for storing embryos.  Generally, multiple embryos are created using the sperm or ova from the parents or from donors when a couple undergoes ART in order to conceive. The hope is that creating and implanting multiple embryos during a cycle provides the best chance of having a child. Sometimes such presumptions go awry, as in the infamous case of Nadia Suleman, dubbed Octomom by the media, who gave birth to octoplets after deciding to implant all of the embryos conceived through IVF. Sometimes couples opt to create embryos without the intent of immediate implantation. In such cases, a couple may desire to postpone parenthood, but reduce the risk of using older gametes when they are ready to start a family. 

While cases of more than two or three embryos surviving through to delivery are the exception, of graver concern to some are the number of embryos stored for future use that are never implanted or exist unclaimed and potentially destroyed or donated to research.  In 2012, the U.S. Office of Health and Human Services estimated that over 600,000 cryogenically preserved embryos were frozen (cryo-preserved) and housed in fertility clinics across the country, (U.S. Department of Health and Human Services (2012)) and the UK’s Human Fertilisation and Embryology Authority estimated that in 2012, 1,691,090 cryo-preserved embryos were unused and discarded. (The DNAindia, http://www.dnaindia.com/health/1783970/report-millions-of-embryos-created-for-ivf-thrown-away-unused).

For those who believe that a person exists at conception, the notion of embryo orphanages sounds like a page out of science fiction and solicits moral distress.  Even for those unsure about when personhood begins, the thought of hundreds of thousands of potential persons existing in suspended animation and unceremoniously discarded as medical waste challenges their comfort zone with respect to moral standing.  In a familiar showing of law lagging behind technology and ethics lagging behind law, governmental oversight of fertility clinics and laws defining policies for the disposition of frozen embryos are virtually non-existent. Currently, each fertility clinic is entitled to generate its own policies regarding the conditions for storing unused embryos, including the fees they charge for storage, how long they will store an unused embryo and what they do with those embryos that remain unclaimed.  Although the office of HHS instituted a program in 2002 that provides funding to assist fertility clinics with promoting embryo adoption, the program does not prevent the potential unfettered increase in embryos entering ‘adoption status’ or provide policies for disposal. Equally perplexing are the disparity of decisions handed down by the courts in custody cases between divorcing couples vying for the rights to embryos conceived through ART. Often the issues involve property rights and the potential Constitutional rights or–lack thereof—of each spouse when one wishes to have a child using the embryo created during the marriage, and the other does not.

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