In Vitro Verities

European IVF Policy as a Better Model for America

A short search for “embryo jewelry” on Etsy yields results on how to have your cryo-preserved snowflake child or polar bear turned into a “unique wearable article.” “Snowflake child” and “polar bear” are terms used in the IVF business for deep-frozen embryos. Microscopic embryo “seeds” and even embryo ash can be made into bracelets, necklaces, or integrated into hand-lettered prints of the word “Love,” thus enabling couples to have their embryos with them forever.

The fact that some couples desire to keep their deceased embryos with them indicates a deep conflict embedded in their thinking about prenatal life. Couples who lose embryos during fertility treatments have deep emotional attachments to them because these are indeed their children. But the fact that embryos are persons gets lost in the way the artificial reproductive technology (ART) industry treats them as biological commodities, even if very valuable commodities. Some embryologists even describe the embryo as “a living human tool”.

Treating a human being as a product to be manufactured and used for the benefit of others violates human dignity and makes IVF a morally troublesome practice, even when it results in the undeniable good that is a child. Some countries allow ART clinics to operate with very little regulation, but Germany at least recognizes the embryo as a human being. In Germany, the ethical handling of human embryos produced by IVF is legislated through the Embryo Protection Act, a law that specifically defines embryos as prenatal human individuals and prohibits any action that would interfere with their continued existence. In America, a few personhood amendments have been tried, but they don’t protect laboratory-created embryos. As Salvo author Katie Breckenridge of Them Before Us has explained, many are being deep frozen, or disposed of before they can be implanted in the womb. For Americans who want to protect prenatal human life both in the lab and in the womb, Germany’s law offers a better model.

Death by the Numbers

The way IVF commodifies children can be easily seen from the industrial scale on which laboratory-created embryos are produced, selected out, allowed to die, or to slip into somnolent oblivion in cryo-tanks. Writing in December of 2012, S. Doughty noted that “1.7 million  embryos created through IVF have been thrown away, and just 7 percent lead to pregnancy.” In Europe, only an estimated 500,000 embryos were created above what was needed to bring about pregnancy in 2015. These numbers show that the scale of humans thrown away is far higher in countries where IVF is virtually unregulated than in countries where it is regulated. According to one 2019 report, 1.4 million embryos were frozen in America, of which as many as 18 percent were abandoned.

Defining Embryos as Persons Provides a Basis for Ethical Treatment

The German law is specifically designed to protect embryos. It forbids freezing any fertilized egg cells that have already begun to divide. It forbids surrogacy and egg donation, as well as cloning and genetic experimentation. Not only does the act have legal punch—imposing steep fines for illegal embryo research, it also has enduring cultural currency. The now thirty-year old law is still a touchstone both for asserting biblical morality and for ethical debate about reproductive medicine.

A recent exchange on a popular German Catholic website demonstrates how the view of the embryo as a product, which is endemic to IVF, conflicts with the Act’s goal of protecting the human person. When asked what she thought of embryo jewelry, Claudia Wiesemann, an obstetrician and member of Germany’s ethical commission, said that making jewelry out of embryos makes them into objects of everyday use, which is inappropriate whereas plunging them into the deep freeze or selling them to science is more humane. At least, she noted, it’s better than “throwing them out in their own juice.”

What Dr. Wiesemann apparently can’t see is that freezing, storing, and experimenting with living human embryos is already treating them as products to be used, and is prohibited by German law. The 2019 and 2021 statements of the Conference of German Bishop read the Embryo Protection Act with the correct view of human worth: embryos are human children in a vulnerable, pre-born state, and as such they have the right to the social and biological environment they need to thrive.

The Embryo Protection Act doesn’t just legally define the human embryo as a person; it also addresses certain additional human rights. It accords to the person the right to genetic identity, the right to grow up in an intact family, and the right to continue to exist and grow as an individual – fundamental human rights given to all citizens in Germany. It does this by preventing motherhood or fatherhood from being split between a biological parent (the mother or father who is genetically related) and a social parent (the parent who cares for the child every day), whether by donor insemination, using an egg cell from a woman who is not the genetic mother, or through third-party gestational surrogacy.

Consumer Ethic vs. the Meaning of Family

We already know that being raised by the biological father and mother provides the best environment for a child to thrive. But, if IVF uses an egg and a sperm cell from a married couple, what is the problem?

Susanne Kummer, an Austrian bioethicist, exposes some of the assumptions behind IVF that contribute to the commodification of children, even in marriage. She argues that when children are conceived outside of the body, instead of through the personal union of their parents, it implies a fundamental change in our view of human life. As an example, she adduces Preimplantation Genetic Diagnosis (testing for chromosomal differences), which makes it possible to perform sex selection on an embryo, or even to select for chromosomes that make the child an organ donor for a sibling. IVF’s assumption that a child is a product has not only led to more genetic testing, it has put reproductive medicine in Germany on a collision course with the country’s embryo law.

Does the Law Protect Embryos or Prevent Them?

The Embryo Protection Act stipulates that when three embryos are cultured (allowed to develop in a lab) then all three must be implanted during one IVF treatment. For this reason, the Act has been charged with causing the deaths of the very embryos it was designed to protect. Doctors argue that this “rule of three” forces them to perform fetal reductions (where one baby of a multiple pregnancy is killed) when it would be more humane to eliminate embryos at an earlier stage before they are implanted. But multiple pregnancies, while they entail higher risk, are not a death sentence for developing embryos. Selective fetal reduction is.

When some German clinics throw away “extra” blastocysts (early embryos), sometimes even against the couple’s wishes, they are following the letter of the law which says that no excess embryos should be present. This is a direct consequence–albeit unintended—of how the Act is formulated: the Act’s first section names as punishable seven abuses of reproductive technology, each intended to preserve the natural bond between pregnant mother and child by returning all three embryos to her body, thus ensuring that each embryo produced has a protective uterine space in which to grow. Without these restrictions, the rates at which “excess” embryos are discarded in Germany would be far higher than they are today.

A Model for the U.S.

If American lawmakers created something similar to the German rule of three, it would at least contribute to reducing the astronomical number of stored embryos. It would also offer couples the option of deciding whether they want to limit the number of embryos created for them in an IVF process, rather than funneling them through a “one size fits all” fertility industry. As American law regarding IVF currently stands, it recognizes neither the responsibility of parents or the vulnerability of embryos.

No distinction should be made between the disposal of embryonic humans in the lab, and the disposal of millions of humans in the ashes of Auschwitz, and Germany’s Embryo Protection Act offers a workable model for American policymakers. The IVF industry won’t protect prenatal life on its own. Only a law that puts human worth and human life on the same level will effectively protect prenatal life in the lab and in the womb.

It is far better to create a law that protects both the mother and her future babies than to hope that reproductive technology won’t do more harm than good. If the United States wants to protect more human life, it should follow Germany’s example.