Clinics face legal, ethical issues alone
By Nancy Parello, Trenton Bureau, The Record, NJ, August 15, 2001

While reproductive technology soars ahead, the state Legislature has remained silent on the serious ethical issues that arise when couples use science to help create babies.

The New Jersey Supreme Court began to provide some answers to these questions in a ruling released Tuesday that bars a divorced father from having frozen embryos implanted in another woman.

But plenty of questions remain.

What should clinics do with “abandoned” embryos? How long should they hold them before they are discarded? Should they be given to universities for research? Should they be donated to infertile couples? Should couples be forced to grapple with these issues before treatment?

A bill that would begin to address these issues has languished in the state Legislature. As a result, clinics have been left on their own to wade through the minefield of ethical and legal issues.

Melissa Brisman, a Montvale attorney who specializes in reproductive law, said most clinics are addressing the issue with consent forms that couples must sign before they start treatments.  

Often, these forms deal with what would happen in case of death or divorce, Brisman said.  

“Clinics have asked people to designate one person who would be in charge of embryos upon divorce or death’” Brisman said. “That’s a relatively recent phenomenon.”  

At Reproductive Medicine Associates, which has offices in Englewood and Morristown, couples go through an “extensive consent” process that attempts to deal with all potential situations, said Michael Slowey, an Englewood doctor who specializes in infertility.

Couples can choose to destroy or store the embryos or donate them to research, he said. But, he added, the consent form “means very little” when challenged in court.

“There have been a number of cases where it’s very clearly laid out what is supposed to happen, yet somebody changes their mind and the judges rule very differently than what consent calls for,” he said.

Arie Birkenfeld, an infertility doctor at the Diamond Institute for Infertility and Menopause in Milburn, said his clinic also provides consent forms, but they deal only with what a couple wishes to do with embryos once treatment is completed. The agreements do not address the issues of a spouse’s death or divorce.

The clinic offers patients three choices: discard embryos, donate them to another couple, or keep them frozen. Most people, Birkenfeld said, opt to store them.

“It’s a very, very complex issue,” Birkenfeld said. “We’ve been freezing embryos for more than 10 years and some of these issues are just evolving. We are handling a technology which is, by far, ahead of legislation. It is our responsibility to think ahead now. But I don’t think that we as physicians can do this alone.”

In a Supreme Court case, the couple, named in court papers as J.B. and M.B., had signed a consent form with the Cooper Center for In Vitro Fertilization in Burlington County. The agreement said the biological parents would relinquish all rights to the embryos in the event of divorce, unless a court ordered otherwise.

Cooper Health System spokeswoman Brenda Hecker refused to discuss any changes in contracts between the center and infertility patients since the suit was brought in 1997. She said she was not allowed to discuss patient contracts because they are “private.”

Infertility experts say it is unusual for contracts to call for the rights to revert to the clinic. Brisman noted that clinics are trying to avoid being left with abandoned embryos, unable to get estranged couples to take responsibility for them, and afraid that if they discard them they will be sued.  

Brisman said it’s time for lawmakers to develop public policy on the issue. “We need some sort of regulation to what people can expect in advance,” she said. “The legal aspects have not caught up with the technology. The law is murky.”  

Assemblyman Neil Cohen, D-Union, several years ago introduced a bill that would require all couples to sign a standard, binding agreement that deals with all issues, including death, separation,

However, he said lawmakers have been reluctant to take up the debate, partly because they were waiting to see how the Supreme Court would rule in the case of the divorced couple. They’re also worried about entering what inevitably turns into a heated argument over abortion.

Abortion foes oppose discarding embryos or using them for research. They maintain that human life begins at conception and so the embryos should be protected and “adopted” by other infertile couples.

Still, Cohen said, it’s time for lawmakers to act.