For years, my husband Rob has been asking what my plan is for the five embryos that we have saved and stored in Pennsylvania. I say my plan because, if it was up to him, I imagine we would have discarded them long ago. We know we don’t want any more children. And we’re paying a not insignificant sum of $80 per month to store them at our fertility clinic in a very purple state. But I haven’t been able to bring myself to throw them away. Or use them. Or offer them to another couple. I’ve been stuck. And thanks to the recent wake-up call in Alabama, I can now see that, at some point, the choice may not be mine to make anymore.
Our embryos aren’t alive—they’re not children, no matter what Alabama claims. But they’re still the potential for life, and it’s been difficult for me to make a choice about what to do with them. The Alabama ruling last month declared that embryos should be considered “unborn children,” which sent two of the eight fertility clinics in the state scrambling to determine the legal consequences of the decision. The reality is that when embryos are thawed, transferred, or even left in storage, there’s a chance they could be damaged. Could clinics in Alabama have wrongful death or manslaughter cases on their hands if something happened to someone’s embryos? Or in a case like ours, would I be forced to implant our five embryos because discarding them—or storing them indefinitely—would be considered criminal?
Four years ago, I laid in the operating room, naked from the waist down, with just a paper blanket across my bottom half, as our doctor pointed to a screen “There’s your embryo,” he said, beaming, as if he had created it with his own hands. “Isn’t it perfect?” We watched as the doctor placed our embryo into a small catheter that looked like a tiny straw, which he inserted into my cervix. “Look over here,” he said, and we saw a white speck floating toward my cylinder-shaped cervix. There was nothing sexy about this moment, but it was magical nonetheless.
I walked out of the clinic that day with an embryo inside of me. Whether or not the embryo would implant and eventually become a baby was another story. But in that moment, I told myself I should take this step as a small victory. I would beg the universe to make my tiny embryo grow.
Rob and I had gone through a failed batch of frozen eggs and two failed cycles of IVF before the full-term pregnancy that gave us our daughter, Clementine, now three and a half. After all that, it was difficult to imagine simply tossing our remaining embryos into the trash.
Rob likes to play out worst-case scenarios over dinner, while I like to plan for disaster and then stick my head in the sand hoping it won’t ever come to that. “So, what if something happened to Clementine?” he asked recently. “At 46, would you really want to be pregnant again?”
I could tell by the way he framed the question what he thought my answer should be.
“Yes,” I said. “I would.” If we lost Clementine—even typing these words hurts—I would want to have another child I gave birth to.
Rob nodded.
I could see his eyes were asking: “What if you were 47? Or 48? Or 49? At what point would you draw the line?”
I dislike drawing lines.
Somehow it seems easier to survive the fragility of life if we have five more embryos as backup. Not that another child would replace our daughter. But there wouldn’t just be darkness. The embryos have become my talismans. Holding onto them means nothing can happen to Clementine—which in turn means that discarding them could invite doom.
When I talk to other women who have embryos in storage, many say the same thing: They have no plans to use their embryos, but they don’t plan to discard them either. We are all unsure of the best path forward. All of these frozen embryos are a real estate nightmare for the clinics across the country that need to store these sacks of cells for months, or even years, as their patients work through their family planning futures. Fertility clinics are in the healthcare business, doing their best to ensure individuals and families leave with a healthy baby, and embryo storage is risky. Understaffed clinics, unsafe protocols, and even human error can all spell disaster, as a Bloomberg investigation found. Even before the case in Alabama—which began when another patient opened one of the cryopreservation tanks where embryos were stored, burned himself, and dropped the embryos—there had been more than 130 lawsuits over destroyed embryos in the US alone from January 2009 to April 2019.
In a post-Roe America, frozen embryos have become an even bigger issue—not only for the mental health of those storing them, but for the clinics who have to maintain the safety and security of our most precious genetic material. At least 11 states, including Pennsylvania, have broad personhood laws regarding unborn children that could potentially grant frozen embryos the rights of a person. “If there is one silver lining in this situation,” Sean Tipton, the chief policy and advocacy officer for the American Society for Reproductive Medicine, told me “it’s that this will incentivize people to make decisions about their frozen embryos. Suddenly we’re seeing how easily control over the embryos your sperm and eggs created can be taken away from you, and frankly, that should terrify everyone, not just patients who have embryos in freezers.”
This week I looked back at the contract I signed with my clinic and saw a clause that hadn’t registered with me back then: A decision would have to be made on what to do with our embryos five years after completing the treatment. The clinic will only have to give us 30 days, the contract says, before taking control of our embryos. And what? Disposing of them? Moving them to a long-term storage facility owned by ReproTech? (ReproTech is one of the biggest embryo-storage companies and has storage facilities in Texas and Florida, states that haven’t been supportive of women’s reproductive rights, to say the least)
It’s not exactly clear what the consequences could be for women like me if other states follow Alabama’s lead. Even though the Alabama Legislature recently passed legislation to protect the IVF industry, other states are up for grabs. Will women be forced to transfer their embryos? Or donate them? Will storing embryos be considered child abuse? Or even if none of these sci-fi scenarios play out, there are other concerns. Dr. Eric J. Forman, the medical and laboratory director at Columbia University Fertility Center, fears that even if IVF doesn’t become illegal, it will be more challenging to practice effectively, making an already expensive procedure even more exorbitant. “What would happen if states limit the number of embryos that could be created through IVF?” he asked. “IVF is not a perfect process, and it’s hard to predict. If we couldn’t make as many embryos, it would take longer for women to get pregnant, it would be more work for the lab, and there would be lower success rates. This will drive up costs and limit how many people we can help.”
“And what if preimplantation genetic testing was outlawed?” Forman asked. Would clinics have to transfer all embryos, even those with diseases? Would there be more high-risk pregnancies? More multiples? “It wouldn’t be the end of IVF, but an enormous setback to a lot of the advances we’ve had in the field that have made this process safer for our patients and their families.”
Even if I choose to keep our embryos in storage past the five-year mark, there was another clause I hadn’t read: After a woman turns 51, our clinic will no longer do an embryo transfer. I’ll be 47 this year. That gives me four more years to drag my feet. Four more years to punt the decision to a future version of myself that I hope is better equipped to choose. Four more years of frozen limbo.
In some twisted way, my feelings about my embryos align with Alabama lawmakers. I don’t feel comfortable discarding them. But I want the choice to be mine. I don’t want Alabama, or Pennsylvania, or any state or entity to make that decision for me.