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The IVF question: What to do with leftover embryos?

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Sara R. Cohen is a fertility lawyer based in Toronto, but with clients throughout the country and abroad. She is the founder of Fertility Law Canada, a partner at D2Law LLP and the author of the award-winning Fertility Law Canada blog. Cohen regularly works with intended parents, gestational surrogates, and donors, as well as domestic and international fertility clinics and cryobanks. Cohen is a frequent lecturer about fertility law issues, and a published author. She is an advocate for all parties involved in third party reproductive technology.

For those currently undergoing in vitro fertilization, the entire process can be complex – both medically and emotionally.

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In vitro involves creating an embryo in a medical laboratory using eggs harvested from the intended mother (or a donor) and sperm collected from the intended father (or a donor). After a period of incubation, the embryo is transferred into the woman's uterus and the wait for implantation – and hopefully, a positive pregnancy test! – begins. Any extra embryos are frozen in storage.

But even after one or more successful pregnancies, there's one more step. A broader, potentially ethics-related question can linger: What to do with any leftover embryos?

It's a dilemma that may sound more like a blessing than a problem, ostensibly because the family is now complete.

There are four broad options available: destroy the embryos, donate the embryos to science, donate the embryos to another person for his or her reproductive purposes, or continue cryopreserving the embryos and decide later. The last option, to continue freezing the embryos indefinitely, seems rather popular based on the large number of embryos clinics tell us they are storing. We do not know the exact amount of embryos in storage across Canada, but I believe a fair guess is in the thousands.

Not all clinics engage in embryo donation. In fact, although the numbers are rising, Canadian clinics regularly participating in embryo donation seem few and far between. And, even fewer and farther between are the clinics that will engage in non-anonymous embryo donation (by which I mean embryo donation where the genetic parents donate the embryos to a specific person of their choosing for his or her reproductive purposes, whether or not the recipient is a friend or family member).

I am often told by clients and friends alike that they did not even realize that embryo donation was an option; they understood the options to be limited to destruction, indefinite cryopreservation, or donating the embryos to science. The problem, from my perspective, is that people are making decisions about what to do with their leftover embryos without knowing all of the options available to them.

How can it be said, then, that they are truly providing informed consent?

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Just because a particular clinic doesn't engage in embryo donation, or doesn't engage in known embryo donation, doesn't mean the option isn't available. Clinics that do not offer embryo donation ought to inform their patients that other clinics may provide such services.

From both an ethical and a pragmatic perspective, embryo donation may offer solutions to various issues plaguing the fertility community. Some people feel it unethical to destroy embryos or to donate them to science, and embryo donation offers an alternative. But even for those who do not feel the destruction of embryos is immoral, there are other pressing reasons why embryo donation ought to be considered.

In a country with a severe shortage of donor gametes, embryo donation may play a small role in solving this crisis. Further, it is typically far less expensive than is the cost of an IVF cycle, and avoids subjecting additional women to the fertility drugs necessary to stimulate the ovaries for an IVF cycle.

Many jurisdictions across Canada do not require a genetic connection to the parents to secure legal parentage, and the legal parentage of a child born via embryo donation is no different than that of a child born via donor sperm and donor egg (something that may happen relatively frequently in Canada, even in the clinics that reject the use of donor embryos).

That being said, embryo donation is not for everyone.

Opponents will point to some older research demonstrating the low number of people who would choose to donate their embryos if they had known it was an option. It's time for new research, new education, and new legislation. We need new research to update us on the number of people who are involved or would be involved in embryo donation if this were available to them. We need new education to open people's minds to this type of family building as an option, both from the perspective of the donors and the recipients.

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And, in the jurisdictions where the legislation is lagging in terms of parentage of children born through the use of assisted reproductive technologies, we need new legislation to make it clear that a donor is not a parent only by virtue of the donation.

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