A Legal Foundation For Your Family

Understanding the basics of embryo adoption

On Behalf of | Oct 26, 2017 | Assisted Reproduction

The time leading up to starting or expanding your family is exciting. For those looking to bring a child into this world through embryo donation, you will likely have a number of questions as you look further into starting the process.  In this post, we hope to provide you with some basic information about embryo donation.

Embryo donation versus embryo adoption

Embryo donation is often mischaracterized as embryo “adoption.”  The only law across the United States that is treated as an adoption is the adoption of a live-born, existing child after birth.  There is no precedent for “adopting” an embryo.  Embryos are donated like sperm or eggs; they are not adopted.  Those who refer to embryo adoption are often conservative moralists who want to view embryos as persons, especially for abortion regulation purposes.  It is inappropriate to confuse those two issues, and embryos should not be treated like living children for adoption purposes.

Anonymous versus open donation

When it comes to embryo donation, there can be two separate paths: anonymous or known. With an anonymous donation, you will not know identifying information about the family (genetic contributors) who created the embryo and subsequently made the donation. With an open donation, you will have identifying information about the donors and could possibly even meet them, depending on the circumstances surrounding the donation.  Whether the donation is anonymous or known, it is recommended that an express written agreement be drafted and executed by all relevant parties.

There are risks and benefits in both scenarios. For example, with an anonymous donation, you may not receive relevant information about the donors/genetic contributors such as education, location, and family health and genetic history; however, you can minimize the risk of confusing issues of co-existent parental rights of the donors and the recipients.  You can also potentially forego the additional legal processes that may be recommended to terminate the possible residual parental presumption of the genetic contributors/donors.

With a known donation, relevant information about the donors/genetic contributors will be more readily available and accessible; however, depending on the applicable state law, the donors may retain fundamental parental presumptions that continue to allow them to potentially assert parental rights to the resulting child.  This may require additional legal proceedings to terminate those residual parental rights.

In both case, it is possible to negotiate contact with the donors/genetic contributors once the child becomes eighteen and to require sharing of relevant developing health information between the donors and the child.  In both cases, these additional issues should be incorporated into a signed agreement between the parties.  In both scenarios, relevant medical information that is known at the time of the donation is typically shared.

Embryo donation requirements

Embryo donation is not adoption.  However, if it is treated as an adoption as through certain religiously-affiliated facilitators, embryo “adoption” can be treated similar to the adoption of an existing child in many ways. One key difference, however, is that it must be both started and concluded before the embryo is ever transferred to the recipient’s uterus to initiate a gestation.  Since a pregnancy is never guaranteed, this may result in the ultimately unnecessary expense of an “adoption” of an embryo that never actually becomes a living child.

If it is treated as an adoption, a home study may be a requirement for embryo adoption. With this home study, you can expect to learn more about adopting a child who is genetically different from you and how to address this topic with your child in the future. An evaluation is also done to determine if you are truly prepared to bring a child into your life.  A home study could conceivably determine you are not a suitable prospective home environment/parent for the child and prevent the “adoption.”  No such study is required if the transfer is treated as an embryo donation (unless required by the donors as part of a known donation).

Addressing the legalities of embryo donation

Embryo donation is an amazing process for many reasons, not the least of which is that it gives an aspiring parent who is suffering from infertility the option of accessing genetic material for a pregnancy without the exorbitant cost of the full in vitro fertilization process. It also allows for the productive use of the more than 1 million frozen embryos currently stored in the United States.  Although a recipient couple may not be able to use their own genetics, this process does provide an option for starting or expanding your family in a way that will allow the recipient intended mother in a heterosexual couple to carry the child during pregnancy. To date, there have been more than 7,000 babies born thanks to embryo donation in the United States alone.

However, as the process becomes more popular, the laws continue to change. On the federal level, there is no set of clearly established laws since embryo donation is expressly subject to individual states’ laws. While some states do have laws around assisted-reproduction technology, there is no set standard. Rather, embryo donation currently often falls under general contract law – with donors and recipients having legal agreements put in place to address parental rights and how contact – if any – will work in the future.

One of the biggest risks is not thinking through the various scenarios and then getting everything in writing. Even in cases where you know the donor – even a close friend or family member – both you and the donor will still want to work with a legal professional to ensure everyone’s rights are protected.