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  • Janene Oleaga, Esq.

Remaining Frozen Embryos: Now What?

Updated: Mar 11

Embryo donation, embryo disposition, and continued cryopreservation.


In the year 2022 everyone is aware of the increasingly common need for couples to utilize assisted reproductive technology when growing a family. When couples employ in vitro fertilization ("IVF") as a means of growing their families, the singular goal is to create quality embryos to ensure the greatest possibility of achieving pregnancy and giving birth to a child or children. These couples are counseled that not all embryos are suitable for transfer for conception, not all embryo transfers with quality embryos are successful, and not all pregnancies lead to live births. With this in mind, its understandable that most IVF patients are hoping for the greatest number of embryos to give them the best odds at having children.


At the outset of the IVF journey, clinics often present forms to hopeful parents requesting they make decisions about what will happen to extra embryos once their family building journey is complete. The boxes are checked without much thought or counseling - after all, wouldn't having extra embryos be a good problem to have?


But what happens to remaining frozen embryos when families are complete? What choices do parents have about what to do with remaining embryos? What if the couple disagrees about embryo disposition? What happens to the embryos if a couple divorces? What happens if one or both of the parties dies?


Professionals estimate there are around 500,000-1 million cryopreserved embryos in storage in the US today.


Tied up in the pro-choice vs. right-to-life debate is what happens to frozen embryos? Are they people? Are they property? State law regarding embryo disposition varies greatly.



What options do we have?
Continued Cryopreservation
Embryo Disposition Agreement
Embryo Donation to Scientific Research
Embryo Donation for Reproductive Purposes
- known recipients
- identity-release recipients
- anonymous recipients
Discard

Decision Making Process:

First, lets talk about the feelings you may experience. It can be difficult to wrap your head around the fact that while some of these embryos became the children you now have, the remaining embryos may not. You may experience feelings of grief regarding the fertility journey you endured in order to have children. You may feel joy at the possibility of helping another couple or individual have children. You may not feel ready or equipped to make a decision about your embryos at all.


It's important to honor these feelings and explore the options available to you before making a decision. You likely feel differently about the embryos than you did at the outset of your IVF journey when you were asked for the first time on a sheet of paper: "What do you want to do with your remaining embryos?" Seeming like a remote possibility at the time, you likely made this decision without much thought.


Individuals often change their minds about what they want to do with remaining embryos throughout the IVF process.


Options available to you will depend on your clinic, your state, and the quality and quantity of your remaining embryos.


Options for

Your Frozen Embryos:


Continued Cryopreservation of Embryos:

Keeping embryos in storage means you will continue to pay storage fees which vary clinic to clinic. The benefit is the ability to keep your options open. Review your clinic's policies regarding how long the clinic is willing to allow you to store embryos. You may decide to transport your embryos to a long-term storage facility if you choose continued cryopreservation. Keep in mind there is always risk inherent in transporting embryos.


Questions to ask when exploring continued cryopreservation:

  • Where are you in your family building process? Are you 100% certain your family building is complete? If you are undecided, continued cryopreservation is an attractive option. Couples are strongly discouraged from making a permanent decision about frozen embryos while pregnant or newly postpartum.

  • Are these embryos of good enough quality to transfer to a uterus with the hope of achieving a pregnancy and having a healthy child?

  • Think about how you may feel in a year from now? Two years? Do you need closure now?

In today's world of changing political and cultural climates, continued preservation isn't as easy of a decision as it may sound. Punting a final decision regarding your embryos can come with serious consequences and doesn't answer questions regarding what happens to the embryos in the event of your divorce or death. If you choose continued cryopreservation for an extended length of time, consider an embryo disposition agreement that directs what happens to these embryos in the event of your divorce or death. Keep in mind some states, including New York, do not permit the transfer of embryos, eggs, or sperm, in a will!

Remember Sofia Vergara's battle with ex- Nick Loeb over their frozen embryos?


Read more about embryo disposition agreements here.


Embryo Donation for Scientific Research


You may elect to donate your embryos for the benefit of scientific research, human stem-cell research, or other form of medical research. While donation to scientific research is an option in the United States, it is difficult to effectuate. The United States currently prohibits federal funding for human embryo research, and while stem cell research is legal in the US, there are many restrictions surrounding its practice. State laws regarding embryonic stem cell research differ greatly, with some states being encouraging and others restricting. Before you explore donation to scientific research as an option, be sure your state has a legal mechanism to allow embryo donation, and your clinic is capable of effectuating a donation to scientific research. Only a few research centers in the United States accept frozen embryos and some clinics simply do not have the capability to offer this as an option.


Embryo Donation for Reproduction: Considering donating your embryos to another couple or individual? Now what?


This option gives other hopeful parents the chance to have children. For many people, the idea of helping another couple struggling with infertility is an option that provides fulfillment and closure. You may recall your IVF journey and find comfort in helping others in their efforts to have a family. Keep in mind children resulting from these donated embryos will share full genetics with your children. You should be prepared to one day share with your children that they have full genetic siblings in the world. With advances in genetic testing and companies like 23andME and Ancestry, the idea of ensuring anonymity is becoming less and less likely.


If you're interested in reading more about donor siblings, check out connecting rainbows blog: The magical world of Diblings (donor siblings).


Where can you find recipient parents?
  • Your Clinic

  • Matching Program

  • Full-Service Embryo Donation Agency

  • Privately

Inquire with your fertility clinic if they have an in-house embryo donor program if you are interested in donating to another local couple or individual. A benefit of working within your clinic is elimination of an additional cost for the recipient parents. As recipient parents are generally responsible for expenses incurred in an embryo donation arrangement, ensuring embryos don't need to be transported from one clinic to another eliminates one considerable cost. IVF is expensive, and most people considering embryo donation have already undergone some measure of fertility treatments.


You may choose to use an embryo donation matching agency. These agencies match potential donors and recipients, and you are free to match based on your desired criteria for the recipient parents. Some of these agencies are faith-based, if that is important to you, and others are more secular and inclusive. Embryo donation matching agencies are often not associated with any particular clinic or fertility center, and only assist with the matching process. This comes with a wider network of potential recipient parents, and also increased fees for any potential recipient parents as the third party agency will require payment for their services.


Similar to matching agencies are full-service embryo donation programs. These programs help with both matching and facilitating the process of embryo donation from start to finish. Like matching agencies, the benefit is a wider network of potential recipient parents, and the drawback is increased costs for those hopeful parents.


You are always free to donate your embryos privately to a friend, family member, or someone you come to know through a friend or family member. These arrangements offer an intimacy that some couples strongly desire when deciding to donate their embryos. Other couples are less inclined to opt for a couple that is within the close network of their friends and family.


Decide how intimately you want to be connected to the recipient parents when making your decision about how, where and when to donate your embryos.

  • How close do you want to be to the recipient parents geographically speaking? Is driving distance to the same clinic too close? Is the same town too close? The same state?

  • What level of intimacy with the recipient parents would you prefer? Do you want an open relationship? How much communication are you comfortable with? Would you like to see the family occasionally? Would you like photographs or notifications of birth from the donated embryos?

  • If matching with the help of an agency, program, or clinic, do you want to retain control in choosing the recipient parents or would you prefer they make the choice for you? Do you want to provide a list of criteria or leave it entirely up to your clinic or matching program?

  • What amount of information do you want about the recipient parents? Do you want identifying information? A photograph? Nothing at all? What do you want to share about yourself and your family with the recipient parents?

Known vs. Anonymous Donation. In semi-anonymous embryo donation you may receive information about potential recipients and choose from among a few couples or recipients. In an open or known arrangement you will receive full identifying information about the recipient parent(s). In any embryo donation arrangement you will want to ensure your expectations surrounding future contact between yourselves as donors and the recipient parents are the same. This is especially important with known embryo donation. Future contact should be clearly addressed in your embryo donation contract, along with a number of other items.


Legalities of Embryo Donation and Other Considerations


Regardless of which embryo donation arrangement you choose, you will need to enter into a legal contract called an Embryo Donation Agreement. This contract should clearly define the rights and obligations of embryo donors and recipient parents and ensure parental rights to any resulting child are clearly established and legally protected. Your embryo donation agreement should address the relevant law in your state, your desired level of confidentiality, the sharing of relevant medical information, responsibility for testing, storage, and transportation fees, potential legal and medical risks, what will happen to any remaining embryos after donation, and expectations surrounding future contact. It is important to note that under US law, embryo donors are not permitted to be compensated.


If you are ready to enter into an embryo donation agreement, reach out to an assisted reproduction attorney licensed in your state. A list of


A few other notes to keep in mind when entering into an Embryo Donation Agreement:

  • If your embryos were created with donor sperm or donor eggs, you need to ensure the contract you signed with the gamete donor does not include any restrictions surrounding your ability to donate embryos created with the donated gametes.

  • Are you comfortable sharing your genetic history and results of any sexually transmitted infection testing? Most clinics and matching programs require embryo donors complete genetic testing, STI testing, and mental health counseling before donating their embryos to other hopeful parents.

  • What is the quality and quantity of your embryos? Many couples hoping to have children want a number of good quality embryos to offer the best odds at having a live birth and potentially even a sibling for their child. If the couple or individual parent is not going to share a genetic connection with a child they birth, they sometimes feel strongly about siblings having a genetic connection.

A note on "Embryo Adoption": Although sometimes used, the phrase "embryo adoption" is a misnomer. Embryo donation is regulated by the FDA as tissue donation. Adoption is a legal mechanism establishing legal parenthood regulated by state law. When the phrase "embryo adoption" is used, it implies a legal status of personhood.


What to do with your frozen embryos is a personal decision that should be made after careful consideration and reflection. If you would like to learn more about embryo donation and listen to the personal stories of embryo donors, embryo recipients, and donor conceived children, check out EM POWER.

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