A patient story: Who owns your IVF created embryo?

Warning: content may induce rage.  This is written with permission of the patient.

Switching IVF clinics

Recently a patient of mine made the tough decision to switch IVF clinics.  The reason is irrelevant – in every-day life people change all sorts of providers for a number of reasons.  She was ready to move on.  She consulted and chose a new IVF doctor and they are ready to start working together.   

My patient has a frozen embryo at her original clinic, she’s ready to have an FET (Frozen Embryo Transfer) with her next cycle.   The embryo is formed by the gametes of two people; her own egg fertilised by sperm provided through an anonymous donor via the clinic. Her progress is currently stalled while she works through logistics to get this embryo to the new clinic.

Moving the embryo is not the problem.  Sperm, eggs and embryos are regularly transported between facilities, they’re safely protected in a specifically designed, temperature regulated canister. 

So, what is the hold up?

The consent of the anonymous donor. 

The original clinic – one of Australia’s largest IVF groups - has its own regulation around releasing the embryo, stating that they need the consent of the donor to use the embryo at another clinic.  Approval the clinic does not specifically ask the donor to give. 

Is this a necessary regulation?

Although not legally binding, the Australian government has donor guidelines, which indicate that at this point, the donor actually has no responsibility let alone any right to consent:

 “At any time before insemination or fertilisation, gamete donors may vary or withdraw their consent to donation.

Once fertilisation has taken place, the persons for whom the embryo has been created have responsibility for decision making about its use in their own reproductive treatment and the medical care of the embryo (both before and after implantation into the uterus), storage and disposal.”

Clause 6.14 from “Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinic Practise and Research 2007”.  The Australian Government National Health and Medical Research Council.  [emphasis, my own]

According to this clinic, and to the donor guidelines this patient can have the embryo:

  • destroyed

  • donated to science

  • held in storage without an end date, or

  • transferred to her uterus by any doctor within the clinic

 

According to the clinic – but not the guidelines, the patient cannot

  • have the embryo transfer procedure at another clinic

What’s the driving factor behind this need for consent?

The transfer to another clinic means all the donor’s information needs to be transferred, so that the clinic can let the donor know if it was successful, and be the repository of information should the future child ever wish to contact him.

The question must be asked - why is this not included in the original consent agreement?     

What to do when time is of the essence?

Her choices are; 

  • Ask and hope the clinic will get consent from the donor – this is where she is at. This waiting has already resulted in one additional cycle/month passing

  • Start a new round of egg collection at the new clinic – eggs that are biologically older than her embryo eggs

  • Get lawyers involved, adding to her IVF sized stress tornado and financial hole on the side.

  • Pay for the embryo transfer to take place at the clinic she is trying to leave

 

What can we take from this? 

IVF can be an incredible life creating and life changing procedure, but there are patient sized traps to watch for.  We have to keep in mind that it is currently both a medicine and a business, not just a patient care practice.

In regard to embryos created through donor sperm, ownership is an issue you cannot over examine with your clinic.   No one thinks that they will leave their IVF doctor, in the same way no one thinks that they will need a prenuptial agreement. Situations change, personalities clash, egregious mistakes happen, work opportunities come up.  Without a national governing ART (Assisted Reproductive Technology) body, it appears it is up to the individual clinic.  Ask and challenge as much as you can and include the questions about the worst-case scenario;

Questions to ask around ownership of an embryo created with your egg and anonymous donor sperm

  • Am I free to take my embryos elsewhere and are there any limitations?

  • What actions can I take with my embryo and does the donor have any recourse at any stage?

  • If the clinic closes for any reason, what happens to my embryos?

  • Is there currently a legal ownership agreement set up? Is it between the donor and the clinic, or myself and the donor?

  • Specifically - does the donor consent to having his records shifted to where ever I decide to have the transfer take place?

Be your own advocate

Shop around.  Please do at least two initial consultation in two different clinics.  Ask too many questions.

Great IVF doctors exist.  Sometimes they work in what I believe are less patient-oriented practices.  Great practices exist, but sometimes they don’t have the best doctors.  You need to be your own advocate.  Be strong. 

I truly wish you success in your IVF journey. 

Jenna