ANNAPOLIS – Married couples who wish to undergo in-vitro fertilization will have to decide who gets custody of the sperm, egg or embryo in the event of death or divorce, under a bill heard this week.
The bill, sponsored by Delegate Sandy Rosenberg, D-Baltimore, would require a health care provider or facility that provides in-vitro or reproductive services receive a written directive from the couple for the disposition of frozen eggs, sperm or embryos. It must be signed by the female donor for eggs, the male donor for sperm and both the male and female for embryos.
“This bill would say before you begin this process, think about what might happen if your relationship isn’t what it is now,” said Rosenberg. “How would you want the embryo, egg or sperm handled?”
In-vitro fertilization is a form of assisted reproduction used to treat infertility.
The process can include creating several embryos, which may be implanted in a woman. Other embryos may be frozen as backups or for another child.
Some health care facilities and providers already require patients make a decision about the future of their eggs, sperm and embryos before they donate, but there is no uniform agreement.
“The advance directive is a way of patients having informed consent,” said Barbara Redmond, associate general counsel for Greater Baltimore Medical Center Healthcare Inc. “Patients go into this with open eyes.”
In-vitro fertilization has resulted in a number of high-profile disputes about who has custody of an embryo when a spouse dies, seeks divorce or decides not to follow through with the process. The decisions have often been left up to the courts.
In a 1998 New York case, a woman underwent five egg-retrieval procedures and nine embryo transfers, none of which resulted in birth. She and her husband had signed consent forms agreeing the remaining embryos were to be donated to research in the event they changed their mind.
After the couple’s divorce, she sought sole custody of the remaining frozen embryos. Her husband opposed the request. While the judge initially granted her custody, an appeals court reversed the decision, ruling that the provision that the embryos be donated to research be enforced. The Court of Appeals affirmed the decision.
“This (bill) is an effort to address a problem before it becomes a conflict,” Rosenberg said. “It would reduce the anger, the discord if one of the issues arises.”
Antiabortion activists oppose the bill, saying it allows “contracts to be made over human life.”
“No matter how small, each life deserves respect and should not be treated as property,” said Pat Kelly, spokeswoman for the Maryland Catholic Conference.
Ahe bill also fails to make the distinction between egg, sperm or embryo, she said.
The advance directive could address other issues, such as failure to pay storage fees and maintain contact with the program. It also may grant immunity to health care providers who comply with the directive.
“Most of us do this (in-vitro fertilization) because it’s happy,” said Dr. Howard McClamrock, fertility specialist and program director for the University of Maryland Center for Reproductive Technology. “If we have disputes over embryos it becomes unhappy.”