An Act of Grace
They have no legal rights anywhere in the United States. Several states consider them merely "property." And there are a lot of them.
Some estimate that more than 100,000 frozen human embryos languish in cryogenic storage throughout the United States, although no one is sure of the exact number. One solid figure to consider:
In 1996, the last year for which complete records are available, doctors conducted 8,661 transfers of frozen embryos, using an average of 3.5 embryos per transfer, according to the American Society for Reproductive Medicine. But doctors frequently fertilize as many as 30 eggs at a time during in vitro procedures. The remaining 20-plus embryos are then either destroyed or, more frequently, frozen. And as more and more states mandate insurance coverage for fertility treatments, the number of embryos held in "frozen orphanages," as attorney Ron Stoddart calls cryogenic banks, is bound to increase.
Waiting on God
But there is an alternative, and the story of Zach and Elizabeth* can provide hope.
Their daughter, Grace, was born Dec. 31, 1998. Her story is one of God's love, providence and, well . . . grace. She is an in vitro baby, the genetic daughter of a family in the Midwest. That married couple was undergoing fertility treatment; several of the fertilized eggs were transplanted back into the mother's womb, and she later gave birth. The remaining embryos were frozen in tanks of liquid nitrogen. After the mother gave birth, the university hospital where the remaining embryos were stored asked the parents what they would like to do with them.
And then the realization hit: Any one of those frozen embryos could have been their newborn child. They were in fact the child's brothers and sisters, since they were biologically human and created from the same batch of sperm and eggs.
That family faced a dilemma. What to do with the remaining embryos? Destroying them was out of the question.
Zach and Elizabeth live in Southern California. They had been trying for many years to conceive children and had undergone fertility treatments of many kinds. Finally, they were called into their doctor's office in January 1997. The call sounded serious.
"I was waiting for him to tell me I had cancer," Elizabeth says. The news, as far as she was concerned, was worse: They could never have children. "I was so devastated, I thought it would have been better if he'd told me I had cancer," she recalls. "I couldn't believe I was never going to feel a baby kick inside me. It went beyond just wanting a child."
Their doctor proposed in vitro fertilization, but it would have to be with a donated egg. "I wasn't too sure about that," Elizabeth says. Her church denomination believed that in vitro fertilization was ethical only if the sperm and egg came from a married couple.
Months passed. Zach and Elizabeth in the meantime went through the full background check, a "home study," required to legally adopt in California. On Nov. 19, 1997, Elizabeth made this entry in her journal: "I've been praying that God would take this desire [to have a baby] away from me if He doesn't want it to work out."
Shortly after that journal entry, Zach and Elizabeth attended a Christmas play with Ron Stoddart, a lawyer friend who worked for Christian Adoption and Family Services in Brea, Calif. One line in that play struck both Elizabeth and Ron.
"In the intricate design of each flake of snow we find the Creator reflecting the uniqueness of the individual person." Snowflake. Frozen embryo!
If Zach and Elizabeth used a frozen embryo, they would not violate the husband/wife bond, and Elizabeth would be able to experience pregnancy and childbirth. But Zach and Elizabeth insisted that if they were to go forward with the procedure, the embryo would have to be legally adopted as any other child would be, and it would have to be an open adoption, meaning the child would know who her genetic family was and would remain in contact with them in some form.
No coincidences
Zach and Elizabeth had been in touch with Focus on the Family and had met Sydna Mass , then head of Focus' Pregnancy Resource Ministry. They told her about their idea of adopting a frozen embryo.
Sydna recalls having lunch with Elizabeth and Zach, after which she gave them a handmade afghan blanket, which had been donated to Focus to give to "a special child."
"I know God is going to give you a child," Sydna told them, "so I want to be the first to present you with a baby gift."
Unknown to any of the three, the couple in the Midwest had been in touch with counselors at Focus on the Family. One later approached Sydna with a real stumper: He knew a mother in the Midwest who had 20 frozen embryos she wanted to place for adoption.
Sydna was excited. "I have just the referral for you!" she said.
The two couples were introduced and arrangements were made to send the embryos to California. Elizabeth spoke on the phone with the genetic mother on New Year's Day, 1998.
"I was nervous for maybe the first second," Elizabeth recalls, "and then we just hit it off. As we've gotten to know each other, we find more and more similarities with each other."
Twenty frozen embryos were shipped to California. The doctor first chose 12 of the 20 to thaw. Only three survived the thawing process, and they were transferred to Elizabeth's womb in March 1998. None implanted in the wall of the uterus.
Only eight embryos remained. The next possible cycle to attempt a transfer would be Easter weekend. Again, three embryos survived that thawing, and they too were transferred into Elizabeth.
"Easter weekend is when we celebrate new life," Elizabeth says. "Grace came back to life that weekend when she was transferred into me."
Grace was born Dec. 31, 1998. As she grows she'll get to know her genetic siblings in the Midwest. And for her genetic parents, there is also a form of God's forgiveness. If Elizabeth had gotten pregnant on the first try, they might still have frozen children waiting to be born. But in God's sovereignty, all of the 20 remaining embryos were used, and He chose one to create Grace.
"We didn't set out to be crusaders," Zach says. "We just wanted a baby. But if you said we could go back and have our own genetic kids but not have Grace, we'd say no way."
On the medical and legal frontier
Grace's story has a happy ending. Still, doctors face a medical and legal conundrum as medicine delves ever deeper into treating infertility.
One thing many doctors do not think about is the emotional impact on parents when they learn they have frozen embryos remaining, says Dr. Joe McIlhaney, ob/gyn and founder of The Medical Institute in Austin, Texas.
"Most [fertility] programs don't even discuss this with patients," he says. "A patient gets pregnant and then realizes any one of her other embryos could have been this baby." That realization, he says, hits hard. "There's a sense of desperation, a sense of guilt that she didn't investigate this more."
McIlhaney believes that patients considering in vitro fertilization must clearly state their beliefs before the doctor ever begins. "First, it's not necessary to fertilize so many eggs," he says. "To plan not to transfer all embryos back to the mother or to plan to kill them shows great disdain for what those embryos are."
McIlhaney says couples should clearly state they don't want an embryo destroyed unless medically it is incompatible with life. "The doctor should fertilize only the number of eggs that will be put back in the woman's body during the present cycle or in future cycles," he says. Generally, no more than two or three embryos should be transferred each time.
From a legal standpoint, both the genetic parents and the receiving couple must do their homework, says Stoddart, the lawyer with Christian Adoption and Family Services. Stoddart founded the Snowflakes Embryo Adoption Program in response to the growing controversy over what to do with frozen embryos.
"If we believe embryos are preborn babies and are entitled to the same legal protection as a born child, then an [adoption] home study is in order," he says. This also gives the genetic parents greater control over where the embryos are placed.
For the receiving family, Stoddart cautions, "Don't live in a fantasy world. You must tell the child he's adopted. With a frozen embryo, it's tempting not to tell him because you carried him and gave birth to him."
This is true even if the adoption is "closed," that is, neither set of parents knows the other. In such cases, it is especially important to work with a reputable agency. The agency will know the medical background of the genetic parents. "Whatever you do," he warns, "do not buy a frozen embryo, and do not work through 'facilitators' or search [for donors] using the Internet.
"Be sure to get something in writing from the genetic parents to transfer the embryos, sort of like 'transferring title,' " Stoddart says. Indeed, despite Zach and Elizabeth's home study and their effort to legally adopt the frozen embryos, the state of California would not issue an adoption certificate because the frozen embryos were considered property, not human life.
Still, Stoddart sees an additional opportunity arising from the legal and medical conundrum.
"Right now the law is way behind in areas of reproductive technologies," he says. No state fully recognizes a frozen embryo as a human being, although Stoddart says some case law is developing in that direction. And as more develops, it provides more legal protection for the unborn with regard to abortion.
"The danger legislators see is if they give embryos the same rights as a person, it will conflict with their abortion statutes," he says. "But we want to give any unborn embryo the same rights as a baby."
After all, there are plenty of couples like Zach and Elizabeth who long to adopt, deliver and love a little Grace.
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