A very disturbing report out of the Telegraph that is similar to the UC Irvine Fertility scandal that rocked this country back in the 1990s:

Hundreds of British couples could have children that are biologically theirs living with other parents around Europe or across the world without knowing, it has emerged. A Spanish clinic runs an ’embryo adoption scheme’ where spare embryos are donated to other women if the couple who created them do not know what they want to do with them or do not respond to correspondence from the clinic. Furthermore, anonymity rules in Spain means the resulting children cannot trace their biological parents or vice versa.

The scheme would be illegal in Britain as patients must give their explicit consent to their embryos being adopted, or used in research or destroyed. Also in Britain the offspring can trace their biological parents and siblings once they turn 18. The situation has highlighted the risks of travelling abroad for fertility treatment where different laws apply. But despite this, ever increasing numbers of patients are going to foreign clinics, normally for treatment with donor eggs or sperm, which are more readily available.

Embryo donation is relatively rare in Britain with most couples choosing to store their spare embryos fo their own use rather than donate them. Compared with over 1,500 treatments carried out using donated eggs in Britain in 2007, only 221 treatments involved donated embryos.

The ’embryo adoption programme’ at the Institut Marques clinic on the outskirts of Barcelona was started in 2004 and is thought to have been the first of its kind, a spokesman for the clinic said. She said more than one third of British couples treated there cannot decide what to do with their embryos. It means that since 2004 out of 317 British couples treated, 114 did not decide what to do and their embryos were adopted. A further 26 couples agreed to adoption. Each couple had on average two or three leftover embryos so potentially hundreds of embryos from British couples have been adopted. In around 40 per cent of cases these adoptions will have successfully resulted in a baby being born.

The spokesman for the clinic said a total of more than 460 babies have been born across the world as a result of the international adoption scheme. The clinic tries to assign the embryo to a couple who do not live in the same country or region as the biological parents in order to minimise the chance of two siblings meeting.

The clinic writes to patients every year giving them the options to donate the embryos to other patients, donate them for research, keep them for their own future use or discard them. But in many cases the letters from the clinic go unanswered.

Prof Juan Alvarez, scientific director of Institut Marques and professor in Harvard Medical School, said: “To sign this document creates a difficult situation for these couples and in some cases may trigger emotional conflicts. “They value so much these embryos which, in fact, are brothers of their children already born, that they cannot make a final decision and that is why they leave it to medical team of the centre to make that decision.” Dr Marisa López-Teijón, who designed the scheme at the clinic, said: “In many cases, these are couples that have already undergone egg donation, donor sperm cycles or both, making it easier for these couples to “ignore” these embryos. “In this way, and despite the fact that the Spanish legislation on assisted reproduction offers all possible options in order to make a decision, we still find ourselves with hundreds of embryos that accumulate at our centre. “Our desire is to offer these embryos the chance of becoming babies, helping them finding a mother.”

Couples or single women can adopt the embryos. The embryo is matched to a woman of the same race and they are implanted in the womb and carried as normal. Because the women give birth to the babies there is no official paperwork for adoption and the baby is legally theirs. Women from 24 different countries have received embryos in this way, including women from Britain.

Victoria Macdonald, 48, social affairs correspondent for Channel 4 News, and her husband Andrew, were treated at the clinic and have a baby daughter Gabriella. She said she received a letter each year asking what should be done with their leftover embryos. She said: “I am surprised by this, I had it firmly planted in my mind that they would be destroyed. “The clinic talk to you about embryo adoption but we did not realise that this is what would happen if you do not respond to the letter. “I personally would have been very unhappy simply because I would want to know if Gabriella had a little brother or sister running around .” They chose to store their spare embryos and then finally donated them for research purposes when they decided they did not want more children themselves. She added: “However, people who are going through this process should be more responsible and respond to the letter. They only have to post it back.”

Susan Seenan from patients group, Infertility Network,said that this situation highlighted the need for patients who do travel abroad to make sure they are aware of the different rules and regulations in foreign countries which may be very different to those in the UK. She said: “Although many patients do have a good experience of treatment abroad, we have always maintained that before making a decision patients need to make themselves aware of the laws in that country which may be very different from the regulated system here in the UK. “In this particular case perhaps patients may need to ensure that the clinic in question has in writing their express wishes as to what should happen to any spare embryos after they finish treatment.”

A spokesman for the UK regulator of fertility services, the Human Fertilisation and Embryology Authority, said: “In the UK a patient has to give specific consent to their embryos being used by other couples. “Before the storage process begins a clinic is required to ask you to sign consent forms on which patients can specify whether the embryos are to be used for their own treatment or whether they can be donated for the someone else’s treatment. “If this consent is not given the embryos cannot be used by another person.”

This is very bothersome on multiple levels. Under no circumstances should silence be construed as acceptance when dealing with the disposition of frozen embryos. I wonder what steps, if any, the fertility clinic took to ensure the information they had on their former patients were accurate. One can only speculate as to how many of these requests went unanswered because the former patients never received the letter. Beyond that, there is really no legitimate reason not to specifically obtain the consent for donation prior to treatment. If a patient is uncertain as to how to dispose of their embryos, then the default position should be that they must remain crypopreserved indefinitely at the expense of the patient.

I have no doubt we have not heard the last of this story. Having litigated a number of similar cases arising out of the egg scandal at U.C. Irvine, I suspect that there will be numerous claims filed against this fertility clinic by not only angry former patients whose embryos were “donated” without their consent, but also by the recipients of these embryos concerned that the genetic parents might seek custody or visitation of their biological children.