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The intimate significance of IVF embryos: an Australian analysis

3 June 2013
By Professor Jenni Millbank
Professor of Law, University of Technology Sydney
Appeared in BioNews 707

Australia and Britain have both moved to standardise the transfer of only one, or at most two, embryos at one time to minimise the chance of multiple births. More than 120,000 human embryos are now in storage across Australia. While the majority will be used in future IVF cycles, many thousands will not, leading to difficult choices for parents. Over the past decade over 20,000 embryos were discarded in the state of Victoria alone as a result of mandatory storage limits set by law. Last year roughly the same number of embryos were destroyed as were utilised in treatment in the state of Western Australia.

Each IVF cycle can produce a number of additional embryos which may be stored at clinics for use in future cycles. Very few, if any, patients envisage storing these embryos for an extended period of time, but this can sometimes be the case. This might occur because of spacing of children, a couple being undecided about whether to have more children, spontaneous pregnancy following IVF treatment, or inability to agree whether to use the embryos or dispose of them.

In the Enhancing Reproductive Opportunity research project in Australia (1), my colleagues and I examined the impact of law, ethical guidelines, and clinical practices on the decisions that people make about stored embryos. Unlike most research that is focused upon embryo donation for research, we were concerned with whether people were able to make the family formation decisions they desired. Our sole inclusion criterion was that an individual or couple had engaged in IVF treatment and stored embryos. We drew upon the experience of over 400 past and present IVF patients in more than 20 clinical sites across Australia covering matters such as storage limits, use after the death of a partner and embryo donation for reproduction.

We found that current IVF laws and ethical guidelines on issues such as storage limits and destruction practices are intrusive and disrespectful. Policies and practices in modern-day IVF do not do enough to acknowledge the emotional significance of embryos, particularly to the women who underwent painful and invasive treatment to create them.

Public debate has often characterised embryos in dichotomised terms, as either 'mere' cells or as entities of moral significance: 'life' or potential life. We do not believe that embryos should be granted a moral or legal significance in and of themselves as distinct entities. Rather, their value is relational. We concur with Sheryl de Lacey's (2) findings that for participants, 'embryos were considered part of their family that existed yet simultaneously did not exist'.

Embryos matter because of what they mean to those for whom they were generated. This meaning is intensely personal, and infinitely variable. We advocate, ambitiously, for the development of a framework of law, policy and practice capable of honouring these diverse meanings as much as is possible.

Government regulation of IVF to date has largely focused on the prohibition of negative or undesired practices. Our research concludes that we should radically change the role of external agencies to instead focus upon facilitation of positive practices. Informed consent should be enabled with more information, and support services should be provided externally. We propose a separation of responsibilities between fertility clinics and government agencies, with key information, advice, support and dispute resolution services being provided independently of fertility clinics.

Our report contains 57 recommendations for change to laws, policies and practices around IVF in Australia. Many of these issues have also recently been or are currently under debate in the UK at this time. Key recommendations include:

  • A clear 'ready reckoner' outlining options on the storage and disposition of embryos, accompanied by plain language explanations of their legal effect

  • Standard 'exit counselling' at the end of IVF/ time of family completion

  • A standard family limit of ten families per donor

  • On death of a patient, a default rule that decisions on embryos (including own use) rest with the surviving partner

  • Introducing an external information giving and support agency to: undertake donor recruitment, manage a voluntary donor identity register and facilitate donor-recipient-offspring contact, including provision of associated counselling and support services; and an accessible external dispute resolution body and appeals process

  • No compelled destruction of embryos, including as a result of storage limits

  • Patients should decide the manner of destruction of their embryos including options such as taking them home for their own form of disposal or undertaking 'compassionate' or non-viable transfer back to the body of the woman

  • Greater support for embryo donation for reproduction

Australian states such as Victoria and Western Australia have been the forerunners in the development of laws that respond to the unique challenges posed by IVF. In retrospect, many of these laws could be characterised as a belaboured process of trial and error. More reform in fertility regulation will undoubtedly occur. It is our firm belief that future reforms need to be much more carefully informed by people's lived experiences of assisted reproductive technology.

1) Millbank J, Stuhmcke A, Karpin I and Chandler E. Enhancing Reproductive Opportunity
All About the Embryo, University of Technology Sydney |  23 April 2021
2) De Lacey S. Parent Identity and 'Virtual' Children: Why Patients Discard Rather Than Donate Unused Embryos
Human Reproduction |  10 March 2005
13 May 2013 - by Dr Katie Howe 
The transfer of one pre-screened embryo during IVF leads to birth rates equivalent to transferring two unscreened embryos, indicates new research from the USA....
3 December 2012 - by Matthew Young 
Couples in Ireland undergoing IVF treatment will now be able to access tests to check for genetic and chromosomal conditions. Previously couples had to go abroad for the tests, which are widely offered in the UK, but they have now been licensed for use in two Irish clinics.
26 July 2010 - by Antony Starza-Allen 
A fertility clinic in Spain is offering patients the option of using embryos 'left-over' from previous treatments without the donors' explicit consent, the Telegraph reports. The Instituto Marques clinic near Barcelona, which provides fertility treatment to foreign couples, runs an 'embryo adoption scheme'...
16 November 2009 - by Nishat Hyder 
A couple from County Derry in Northern Ireland have taken legal action to halt the destruction of their embryos, currently being stored at the Royal Jubilee Maternity Hospital, Belfast....
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