Legal Aspects of Frozen Embryo Adoption by Michelle Kaminsky, Esq.

Legal Aspects of Frozen Embryo Adoption

Although many unused frozen embryos left over from IVF treatments are destroyed, some are being put up for adoption, so to speak, for couples who desire to go through a pregnancy and birth on their way to parenthood. Is this even legal?

by Michelle Kaminsky, Esq.
updated July 09, 2014 · 1 min read

The increased use of in-vitro fertilization (IVF) in order to artificially conceive a child has brought about an interesting side effect—large depositories of unused frozen embryos. In response, some fertility clinics and adoption agencies have taken the lead in finding new homes for such embryos by allowing their owners to put them up for adoption. More and more, couples hoping to start families are taking part in this embryo adoption process.

The more than 150,000 IVF cycles done every year mean lots of embryos are left over from the process. Although many unused embryos are simply destroyed—for couples interested in giving their embryos another chance to become babies, embryo adoption can be a viable alternative. In turn, this decision could provide another couple the opportunity to experience pregnancy, birth and raising a child of their own.

So what are the legal ramifications of frozen embryo adoption, and how does it work?

Embryo Adoption Laws

First, it's important to note that there's no one set of clearly established federal laws regarding embryo adoption. Some states do have legislation that applies specifically to embryo adoption, or more generally to assisted-reproduction technology, that could be interpreted to include embryo donation procedures.

Georgia, for example, was the first state to explicitly give embryo adopters the right to finalize the adoption, placing embryo adoption on equal footing with the more traditional type of adoption of a child. However, most states, if they do have any kind of law on embryo adoption, “…consider it donation along with egg and sperm donation and make it clear that donors have no parental rights and recipients are considered the legal parents of the child at birth,” according to Resolve: The National Infertility Association.

At its core, embryo adoption is covered by ordinary contract law and legal agreements between donors and recipients that relinquish donors' parental rights and responsibilities and transfer them to the recipients. Such agreements are facilitated by the clinics and agencies that arrange the transfers, and terms can vary considerably.

Embryo Adoption Process

The procedure for embryo adoption also varies by clinic and agency and may involve “open” adoption, in which donor couples are aware of who is receiving their embryos and can even choose recipients, or “closed” adoption, in which the two parties never meet. One example of how the process can work is outlined by a blogger who calls herself “A Mom of Triplets,” who tells her family's frozen embryo adoption story at The Hairpin.

Financial Considerations of Embryo Adoption

Aside from the obvious reason of fulfilling a couple's desire to have a child, one significant advantage for a couple adopting frozen embryos is that donation costs far less than a full IVF treatment. Of course, the donated embryo does not contain the adoptive couple's genetic material as it would with a traditional IVF procedure.

On the flip side, the donor couple does not receive compensation for the embryo (as is implied by the word donation). Notably, even though an embryo's legal status is still unclear —property, human being or somewhere in between—both the American Society for Reproductive Medicine (ASRM) and the American Medical Association (AMA) agree that payments to donors for the embryos would not be ethically sound.

Final Thoughts on Embryo Adoption

Interestingly, even the term “embryo adoption” has caused some controversy. The ASRM maintains the term “adoption” should only be used for children and not embryos. Regardless of the practice's official name, it would seem the donation and adoption of unused frozen embryos is here to stay—at least until medical technology perfects IVF to the point at which the procedure no longer produces extra embryos.

Accordingly, as is often the case when technology meets the law, it' is now up to the law to catch up with medical advancement. This way, couples, both donors and recipients, can know what to expect—legally—when entering into such agreements.

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more