In vitro fertilization (IVF) is an assisted reproductive technology (ART) procedure that involves the “joining of a woman’s egg and a man’s sperm in a laboratory dish.” The MedicinePlus website explains that “[i]n vitro means outside the body. Fertilization means the sperm has attached to and entered the egg.” The procedure can result in “excess” or “surplus” embryos that are not transferred to a person’s uterus as part of the initial treatment cycle. A decision then needs to be made as to what to do with such embryos, which involves both personal and legal considerations. Initially, the embryos could be frozen and stored for a period of time – a process called cryopreservation. Then, depending on what is legally permitted, those embryos could later be thawed and transferred to the uterus of the person who underwent the initial treatment cycle, they could be “donated” to another person to attempt to achieve pregnancy, they could be used for training or research purposes, or they could be discarded or destroyed. Possibly, they could even be stored indefinitely.
The Law Library of Congress recently published a report on the options for, and restrictions on, the use of excess embryos created through IVF in nine jurisdictions: Australia, France, Germany, Italy, New Zealand, Poland, Portugal, Sweden, and the United Kingdom. Although this was a relatively small selection of countries, we noted large differences between the approaches in this area of law.
The report, titled Legal Treatment of Embryos Created Through IVF, examines whether there are any restrictions on the number of embryos that can be created in a single IVF treatment cycle; whether there are legal limits on the number of embryos that can be transferred to a person’s uterus at one time; whether preimplantation genetic testing is permitted, and if embryos can be selected based on their sex; whether embryos can be cryopreserved, and if there are any time limits on the duration of storage; and whether embryos can be donated, used for scientific research purposes, or destroyed. A table at the start of the report summarizes our findings for some of these aspects.
At one end of the spectrum of approaches, the United Kingdom has no limits on the number of embryos that can be created or transferred; allows frozen embryos to be stored for up to 55 years; and allows embryos to be donated, used in research, or discarded. Other countries allow embryo storage for periods ranging from three years (Portugal) to 20 years (Poland). Germany and Italy do not have storage limits, but have limits on the number of embryos that can be created and/or transferred, with cryopreservation only permitted as an exception, rather than being standard practice. Neither of these countries permit embryos to be used in research, and do not allow them to be destroyed. Poland also does not allow embryos to be used in research or destroyed. However, while Germany only permits embryo donation if necessary to provide a chance at an embryo resulting in a pregnancy, and Italy does not allow donation at all, Poland requires embryos to be donated to another person for use in reproductive treatment after a maximum of 20 years of storage. On the other hand, in Sweden and New Zealand, for example, embryos are required to be destroyed after the storage limit is reached, which is 10 years in each of these countries.
Many more interesting details and comparisons can be found through reading the report. While not discussed in the report, the differences in approaches may have evolved due to historical, cultural, and religious factors. The report also does not cover legal restrictions on access to IVF, and other rules related to ART that may be influenced by these factors. However, it provides considerable information about how different countries approach the handling of embryos after they have been created through IVF, and we hope readers find it helpful in understanding and contributing to discussions and research in this area.