HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, May 4, 2014

Guest Blogger Professor Deborah Forman: Egg Banking

Forman DeborahI was flipping through the most recent issue of Fertility & Sterility, the journal put out by the American Society for Reproductive Medicine (ASRM), when I came across an ad for the Fairfax EggBank.  One of the largest sperm banks in the country has apparently expanded into the egg banking business.  The ad was yet another reminder how constantly evolving technology raises new legal questions and sometimes resolves old ones.  

Back in 2007, when I began assisting fertility doctors with their consent forms, I recall considering the special language that would be necessary to address egg freezing, as it was still considered experimental at the time.  No more.  In 2013, the ASRM released a “Practice Committee Opinion” declaring that oocyte cryopreservation would no longer be considered experimental. With advances in the oocyte cryopreservation technique (using vitrification—a quick-freezing process), the rates of success for those using frozen eggs were comparable to those using fresh. 

How does the establishment of egg freezing as an accepted practice change the legal landscape for individuals and couples using assisted reproduction?  Until now, most patients using assisted reproduction have been offered the option of embryo cryopreservation.  The fate of unused embryos maintained in storage has posed dilemmas for patients and, in some cases, has led to litigation when couples divorce.  I have discussed the issues raised in these cases in depth in two recent articles, Embryo Disposition, Divorce & Family Law Contracting: A Model For Enforceability and Embryo Disposition And Divorce: Why Clinic Consent Forms Are Not The Answer.  Although legal theories have varied, courts have shied away from allowing one party to later use the embryos without the other’s consent.  

Egg freezing offers a way out of this dilemma.  Each patient would have his or her individual gametes stored, so presumably each would lay claim to his or her own in the event of divorce.  Of course, whether patients will find this an attractive option will likely depend on predictive success rates in their case, as well as cost.  Couples who are focused on conceiving in the moment may not want to leave any eggs unfertilized without knowing how many embryos will “take.”  Nor will they necessarily want to ponder the possibility of divorce.  Nonetheless, it would seem appropriate for physicians to include discussion of egg freezing as a means of avoiding future disputes as they counsel their patients about the options. Certainly a woman seeking fertility preservation should be strongly counseled to consider egg freezing, rather than (or at least alongside) creation of embryos with sperm from a spouse or partner.

The proliferation of egg banks will also have ramifications.  Currently best practices dictate that intended parents contract directly with their egg donor, though not all do so.  Egg banking would eliminate this aspect of the process and with it, any chance for the donor to exercise control over who uses her gametes and on what terms.  This model has dominated for sperm donation, and perhaps will adapt well to egg donors, but we should think carefully about its implications as the practice evolves. 

Egg banking undoubtedly opens up further options for women struggling with infertility—in some cases avoiding potential legal battles and bringing down the cost, but we should be wary of any effort to market egg banking as an insurance policy for fertile women who may want to delay childbearing.   While women should certainly have the right to make that decision for themselves, they should be well counseled that attempting to create a family through IVF remains an arduous and expensive process with no guarantee of success. 

- Professor Deborah Forman

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