(802) 497-6579
Blog/

Embryo donation v. embryo adoption

Embryo donation v. embryo adoption

By Kurt M. Hughes, Esq.

July 10, 2016

Having just completed my first embryo donation contract for clients working with Northeastern Reproductive Medicine, I wanted to share some thoughts on the contrasting philosophical and legal constructs underpinning this procedure.

Today, most cryo-preserved embryos undergo a “flash freeze” on day three, being less than 16 cells.  Embryos that were frozen several years ago would have been frozen no later than day five.  In determining the legal status of these pre-implanted cryo-preserved embryos, the Tennessee Supreme Court, in one of the first embryo disposition cases decisions in Davis v. Davis in 1992 concluded that “pre-embryos” are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential to develop to birth.  Before some recent Louisiana legislation, no court or legislature has elevated embryos to the legal status of “person” or declared its sole best interest “to be transferred to develop to birth.” 

Because of this potential for human development, all patients are advised to execute a written embryo disposition agreement.  Almost all IVF clinics require patients to sign an embryo disposition form prior to the creation of any embryos indicating their choice for disposing of any untransferred embryos. Among the dispositional choices include freezing the embryos for the patients’ subsequent use, donating them to another family to use, donating them to science, or degenerating them.  These dispositional directives also address what to do in the event of the death or divorce of the intended parents, including whether the remaining embryos can be used by just one of the parties to create more children.  The American Medical Association recommends this approach.  AMA Code of Medical Ethics Op. 2.131 (June 1994).  In almost all cases where a prior written disposition agreement exists, those agreements have been upheld and enforced by the courts.  Without written directives, courts wrestle with determining the parties’ intent at the time the embryos were created and balancing the needs of each of the intended parents.  There is a well-established body of case law from around the country with a variety of approaches to resolving these dispositional disputes.  Two opinions by the Illinois appellate courts in Szafranski I (2013 Ill. App.) and Szafranski v. Dunston (2015 Ill. App.) provide an excellent overview of embryo disposition cases.  Florida has an embryo disposition statute.

The concept of “embryo donation” reflects the emphasis on the free choices made by the intended parents to create the embryos, and focuses on their right to make decisions in the very private realm of their own procreation.  People that believe that personhood begins with conception focus on the “rights” of the embryo, and favor choices that will allow the embryo to develop into a child and a live, full-term birth.  Louisiana just recently passed a statute that mandates this approach.  The legal constructs of an embryo “adoption” would require intended parents to be home study approved, to submit to post birth supervision visits by a social worker, and require a court judgement to recognize them as legal parents.

The American Society for Reproductive Medicine (ASRM) is very clear about which side of this discussion it comes down on: “the use of the term ‘adoption’ for embryos is in accurate and should be avoided.” ASRM Ethics Committee Opinion published March 18, 2016.  Noting the concerns listed above, ASRM opines that “[e]quating an embryo with an existing child and applying the procedural requirements of adoption designed to protect existing children to embryos is not ethically justifiable and has the potential for harm. . . . The use of donated embryos for reproductive purposes is fundamentally a medical procedure intended to result in pregnancy and should be treated as such.”

Certainly, if intended parents themselves prefer to use an adoption a model for religious reasons or moral convictions, there are many embryo donor programs in the country that follow this model. As long as it is the intended parents themselves who are choosing to follow the adoption model, that is certainly their prerogative. However, it is not a construct that should be imposed upon the medical community, nor upon couples wishing to donate their embryos to infertile intended parents or the recipient intended parents hoping to build their family through donated embryos.