Embryohood, Childhood, Personhood

Source: Public Orthodoxy

by Gayle Woloschak

Photo by Monstera Production (https://www.pexels.com)

The Orthodox Church has generally taken a pro-life stand with regard to life in the womb, but the Church has not officially commented on embryos that remain in the test-tube or in freezers as “leftovers” following the In Vitro Fertilization (IVF) procedure. For the Church, the personhood and the ensoulment of the embryo have been issues of theological debate over the years, with room for continued dialogue and discussion. When giving a blessing for IVF, many Orthodox bishops have asked couples to implant only one embryo into a woman’s womb at a time in an effort to minimize the production (and possible discarding) of excess embryos. Despite this, the Church has not determined that these un-implanted embryos are “children,” nor has the Church considered them to be persons, a decision that, were it to take place, would make destruction of these embryos a matter of serious concern.

Recently, however, the Supreme Court of the state of Alabama ruled that frozen embryos are “extrauterine children” and that when frozen embryos were accidentally destroyed in a fertility clinic in Mobile, the clinic was considered liable under the Wrongful Death of a Minor Act. Although the state quickly passed a new law giving immunity to IVF clinics, the implications of the language used in the decision are far-reaching. Without an explicit exemption for IVF, the language of the ruling—which is expected to expand to other states—would make all clinics responsible for maintaining frozen embryos in perpetuity as children, with no options for termination without a resulting wrongful death lawsuit. IVF workers who inadvertently lead to the death of embryos (even just from standard lab accidents) could be considered guilty of the wrongful death of a minor.

There are additional problems with the logic behind this lawsuit. Over 2% of births in the US are from IVF, and many of these procedures result in the production of “leftover” embryos that never make their way to be implanted in a woman (where the usual expectation would be that the embryo would mature to a child). There are reasons why people choose to leave their “extra” IVF-generated embryos in the deep freeze, some of which are unexpected, such as health issues, divorce, natural childbirth, and others. Scientific methods for freezing eggs, sperm, and embryos have evolved over the years, with most approaches using rapid-freezing that allow for the embryos to be stored for at least ten years (and perhaps up to twenty-five years) and still remain healthy. This means that many embryos remain in freezers throughout the nation, with a potential for wrongful death suits upon their destruction.

The first “test tube baby” that resulted from IVF was born in Oldham, England in 1978, and it is now estimated that eight million babies have been born using IVF technologies. Through all these years, clinics have been maintaining IVF-generated embryos in freezers usually for a fee; if the fee remains unpaid or if the “owners” of the embryos have decided they do not want to have children, the clinic or hospital defrosts them and discards them as medical waste. Based on the language of the Alabama ruling, all these disposals of unwanted embryos could be considered as the “wrongful death of a minor” and come with legal penalties. The number of frozen embryos that have been recorded ranges from 400,000 to 1,000,000 in the US, leaving much room for such “wrongful death” charges to be levied. The practical result of this is that clinics in states that adopt similar language to that of the Alabama ruling would be required to perpetually maintain IVF-generated embryos (likely at a significant cost to the clinic) or suffer legal charges. Equipment failure such as a freezer meltdown, which happens occasionally even when all efforts are taken to prevent it, can now come with similar wrongful death charges. The scientific community has developed approaches to maintain frozen embryos for perhaps twenty to thirty years, but maintaining them forever is not something anyone using this technology ever envisioned. The problem of what to do with remaining frozen embryos will be a complicated and difficult matter to resolve with so much at stake.

One option some might consider would be the one noted for Orthodox above, i.e., implant a single embryo per woman with no remaining unimplanted embryos left for freezers. What is the difficulty with this single-embryo implantation? The take-rate for implanted embryos is often low, and this means multiple repetitions of the IVF process (collecting eggs in particular can be painful and inefficient) to generate each new in vitro fertilized embryo to be implanted. In addition, each process is quite costly; a repetition of each IVF four or five times will drastically increase the cost, keeping the procedure out of the reach of the average citizen. Finally, there are standard risks that come with use of cells in culture (especially sensitive cells like eggs, sperm, and embryos), and the risks of cell death are high, compared to larger beings that can often lose a few cells without any adverse effects. We adult humans each shed over five billion skin cells per day; we can afford to lose many cells. In effect, for an IVF clinic, the death of a single cell in a small embryo (some are single cells, some are at a stage that has 100-120 cells) can lead to the death of the embryo, which in would be punishable by law.

There are arguments to be made on both sides about the value of IVF in our society, but it is clear that families seeking treatment for fertility concerns are increasing, and utilization of the technology has helped many couples have babies that would not have been able to do so otherwise. Most IVF clinics would close their doors rather than risk a possible wrongful death charge. This would severely limit couples who seek to grow their families despite having fertility issues.

Finally, there is some concern about the use of the words “extrauterine children” as a legal term. Every person reading this article was an “extrauterine child” at one time, and thus this language puts the IVF-generated embryo on par with all children of all ages. The Orthodox Church has always recognized the personhood of the child; children are considered full members of the Church even to the point of receiving the sacrament of the Eucharist immediately following their reception into the Church through baptism and chrismation. The court-determined identification of IVF-generated non-implanted embryos as “children” creates a new set of problems. From a practical perspective, when an emergency happens at a hospital, is evacuation of the embryo freezers to be accorded the same prioritization as evacuation of the children’s ward or the premature baby unit or even the elderly patients? By the same token, is the “wrongful death” of embryos punishable with a large fine, with a prison sentence, or with what other type of sentence? Even though Alabama responded to some of the most immediate concerns by granting legal immunity in IVF procedures, the language adopted by its court puts beginning of life issues into new territory that creates novel and uncertain challenges for our society, especially if this language expands beyond the state.

ABOUT AUTHOR

Gayle Woloschak
Professor of Radiation Oncology at Northwestern University