11 May 2021 ‘Lost’ Embryos Dash Couple’s Dreams of Parenthood
As more people use assisted reproductive technologies such as in vitro fertilization (IVF) and cryopreservation to become parents, more conflicts over the treatment and disposition of unused embryos are ending up in court.
From divorce-related disputes over embryo custody to lawsuits against cryopreservation facilities that lose power, conflicts over unused embryos are increasingly common.
The New York Times recently reported on a less common sort of dispute: A couple was told that all the viable embryos they had created were thawed in a final unsuccessful IVF attempt 20 years ago at Women & Infants Hospital in Providence, Rhode Island, only to learn in their 60s that the hospital had “lost” and then found, 10 years later, two additional frozen embryos. Elaine Meyer and Barry Prizant, now 63 and 69 respectively, only learned about the two additional embryos in 2017, when they received a bill from the hospital for storage.
Last Chance at IVF Unsuccessful
After suffering three miscarriages, the couple underwent treatment at Women & Infants in 1995. After two failed IVF cycles, Meyer became pregnant with son Noah, who was born in 1996. The couple had nine remaining embryos, which they arranged to have frozen in hopes they could be used to have another child in the future.
In 2000, the couple returned to Women & Infants to try for a second child. Their physician told them he had thawed all nine remaining embryos in the process, which ultimately was unsuccessful. Then age 43, Elaine was advised to consider adoption or donor eggs. Disheartened, the couple decided to give up their dreams of a second baby and devote their attention to their son.
Twenty years later, the news that they might have had another chance at parenthood had the hospital not lost the two embryos was devastating to Meyer and Prizant. “It is our job as parents to give our children, and in this case embryos, every opportunity for life and for dignity. We were denied our right to fulfill our role as parents,” Meyer told The New York Times.
The matter apparently was made worse by the hospital’s handling of it. The hospital told Meyer and Prizant they discovered the glass vial containing the embryos, still with Meyer’s name on it, was discovered at the bottom of a tank when the tank was emptied for cleaning and maintenance. The vial was cracked, exposing the embryos to the nitrogen coolant in the tank for as long as 10 years, likely rendering them unviable. When the clinic implemented a new storage policy in 2017, Meyer and Prizant got the bill. Dissatisfied with the hospital’s response to their situation, the couple are now at the center of a lawsuit alleging breach of contract, negligence, bailment and intentional infliction of emotional distress, The hospital in a legal filing has alleged that Elaine and Barry 'were guilty of comparative negligence' but provided no further detail, the Times reports.
Embryo Custody Now Part of Divorce, Family Law
Although the case above is far from typical, the disposition of embryos, eggs and sperm is today a routine part of any divorce or separation agreement. In addition to the growing number of people using IVF to become parents, often producing unused or “excess” embryos, cryopreservation of genetic material for fertility preservation is increasingly common. Divorce and estate planning attorneys should routinely ask their clients whether they have any cryopreserved embryos, eggs or sperm in storage.
In the worst cases, one partner may sue to use embryos against the wishes of the other, as happened in the case of actress Sofia Vergara and her former fiancée. Some states have even passed laws allowing an individuals’ genetic material to be used to reproduce against the individual’s wishes (see our report on Arizona’s onerous law granting custody of embryos in divorce cases to the party willing to bring allow them to be born).
As we have reported, some IVF clinics and cryopreservation facilities also are becoming overwhelmed with the numbers of “abandoned” embryos, whose owners have stopped paying storage fees or even disappeared, leaving facilities to face the ethical and logistical questions of what to do with them.
Just as the advent of assisted reproductive technology has changed our ideas about family and parentage, the growing use of cryopreservation to build families and preserve fertility is changing divorce and family law. As is true of any new technology, legislation and case law tend to lag behind the societal changes wrought by technology. As always, the best protection for your reproductive rights and your family is to consult an attorney experienced in family and assisted reproduction law.