Why Embryo Donation and Not Embryo Adoption?

Written by:
Craig R. Sweet, M.D.
Fertility@DreamABaby.com

Harold Eskin, Esq.
HalEskin@LegalSurrogacy.com

Introduction:

While the terms "Embryo Adoption" and "Embryo Donation" are often used interchangeably on the Internet, there are real differences between the two. This is not simply a case of splitting hairs; using the correct terminology has tremendous social, ethical and legal implications. Many businesses uses the term “Embryo Adoption” in their title and/or literature while other facilities, such as Embryo Donation International, have resisted the use of “Embryo Adoption.” The goal of this article is to explain why.

Definitions:

Adoption: The creation of a parent-child relationship by judicial order between two parties who usually are unrelated; the relation of parent and child created by law between persons who are not in fact parent and child. This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the parents’ parental rights have been terminated by court order. (1)

Donation: A voluntary gift (as of money or service or ideas) made to some worthwhile cause. Act of giving in common with other for a common purpose especially to charity. The action of making a gratuitous gift or free contribution. (2)

Cryopreserved Embryos: For purposes of this article, Cryopreserved Embryos (“embryos”) are the product of a human egg and human sperm combined through the process called In Vitro Fertilization (IVF) which are not transferred to a woman’s uterus but are frozen in liquid nitrogen within six days of fertilization. These embryos are the topic of this article.

What Can Happen to the Cryopreserved Embryos?

First, who owns these embryos? They are not owned by the laboratory that put the eggs and sperm together. The parents from whom the genetic material came from own them. Embryos are currently treated as property in the legal system. The “parents” of these embryos ultimately decide their outcome. These embryos are most often used to have additional children but alternately may be destroyed (not all facilities allow this option), donated to science (laboratory work or human embryonic stem cell research) or given (donated) to needy patients.

Legality of Embryo Donation:

Embryo donation is a common option for owners of cryopreserved embryos. Laws regarding the legality of donating embryos vary from state to state. Some states prohibit it, some have no statutes addressing the issue and leave the issue to the state courts (with various results) and a few states, such as Florida, specifically allow for it. (6)

Does Donation Mean Free or can the Donating Parents be Reimbursed?

Of the few states that allow for embryo donation, only some allow for reimbursement. Many states have laws against paying those that donate their embryos. Florida, for example, allows for the reimbursement of some of the expenses involved in the creation of the embryos including, but not necessarily limited to, cryopreservation fees. (6) It is important to understand that the simple act of appropriate reimbursement doesn’t negate the concept of donation.

Who Regulates Adoption and Embryos?

Every state has an adoption statute and deal with changing or establishing parentage of an existing child. Adoptions can only be granted by the Court following the birth of a child. Whereas the medical process for Embryo Donation is regulated by the Food and Drug Administration, the legal procedure greatly varies from state to state and does not involve the courts but is managed through private contracts. (5) This is a significant legal difference between Embryo Adoption and Embryo Donation.

What are the Implications of Using the Term Embryo Adoption?

By using the term “Embryo Adoption”, there is an attempt to afford full moral, ethical and, most importantly, legal rights of personhood to the embryo itself. It is well known that this country is divided with respect to the morality of abortion. If the embryo were given full rights of personhood, this would inevitably result in the outlawing of legal abortion.

Another negative consequence of using the term "Embryo Adoption" is in the rare event of lab accidents or when Embryo thawing is unsuccessful and the Embryos cannot be recovered. If Embryos were given the full rights of personhood, it is possible the embryologist or IVF facility would be held accountable for manslaughter. There is not a program in this country that could stay open with this type of threat hanging over their heads.

In yet another interesting twist, if the embryos were given personhood and if one applied the thirteenth Amendment abolishing slavery, ownership of an embryo could be prohibited. Adoption implies personhood and personhood demands autonomy. While parents have parental rights, they do not own their children. It is probable that conferring personhood to embryos would result in tremendous problems with the legal contracts involving Embryos. Contracts stating ownership and transfer of the embryos could then be in clear violation of the constitution. This would not be the case in an Embryo Donation.

Embryo Adoption might also require a home study, legal fees and judicial review that are not performed with Embryo Donation. One could go through all of these steps and if the Embryos didn’t implant, this would subject recipient parents to unwarranted emotional and financial burdens. To further illustrate the undesirability of using the term “Embryo Adoption,” the American Society for Reproductive Medicine has stated that the term Embryo Adoption is “deceptive.” Black’s Law Dictionary defines Embryo Adoption as slang. (1) Slang can be harmless and sometimes actually useful. In this case, however, it is not a benign choice of words. By using the term Embryo Adoption, there are a number of implications:

“Requiring infertile patients who need donor gametes or patients who need donor embryos to suffer the imposition of unnecessary administrative and legal trappings of adoption and the costs that accompany them is not ethically justifiable. The donation of embryos for reproductive purposes is fundamentally a medical procedure intended to result in pregnancy and should be treated as such.” (3)

As in many regular adoption agencies, Embryo Adoption agencies usually require payment of substantial fees by recipient parents of Embryos (“middle-man” or “finders” fees). Those entities who help arrange Embryo donations, such as Embryo Donation International, do not charge these types of fees.

Who Screens the Recipients of the Embryos?

Those favoring the use of Embryo Adoption feel that it is more appropriate to screen recipient parents by using home studies, psychological screening in addition to medical testing. Paradoxically, there is absolutely no screening done for couples that conceive naturally.

Trying to figure out who will make good or poor parents is extraordinarily difficult. The mere fact that recipient parents are going to great length to have a child immediately places them in a category which is certainly more desirable than those that conceive by accident. That is not to say that all infertility patients will make great parents. It is to say that those that go to great lengths to have and hold a child may be more likely to cherish their gifts.

Physicians have been screening patients for sperm donation, egg donation and surrogacy for decades making certain that the procedure was medically indicated. Screening those accepting embryos should be no different. Embryo Donation must be medically indicated and only trained Reproductive Endocrinologists can ultimately make this decision about the medical appropriateness of this option. Thereafter, the appropriate legal paperwork (consents and contracts) would be utilized to complete the process.

Can Embryo Donation Also Include Some of the Steps Commonly Reserved for Adoption?

We here at Embryo Donation International are examining this very option. We are proposing that donating parents of embryos have three options:

The anonymous Embryo Donation is clearly covered in the Florida statutes and should be the most common form of Embryo Donation. Approved Embryo Donation would maintain anonymity while providing the donor with a slightly increased level of screening of the recipients. If the screening is too involved, however, the embryos will not be chosen by any recipients. The third option of Open Embryo Donation would require the donors and recipients to know whom each other are and allow for the heightened level of screening of the recipients. We expect that fewer donors and recipients may want to participate in this open form of Embryo Donation but may make it available to those that it desirable and/or necessary. It is possible that this last form of Embryo Donation may not be fully covered under the existing statutes so care must be taken when choosing this alternative.

By offering these three options and yet using the correct terminology, we do not open up the participants, both donors and recipients, to the potential scrutiny of the courts when the phrase “Embryo Adoption” is used.

Summary:

The embryo is due a greater level of respect than other human tissues because of its potential to become a person and because of its significant meaning for many people. However, to describe an embryo as a person, which has not yet developed any features we ascribe to personhood, is a dangerous decision. The slippery slope of using the term Embryo Adoption is indeed quite steep and could have ramifications well beyond the IVF world involving legal, ethical and judicial implications. The term Embryo Donation is not only correct but better protects recipient parents and those facilities that have dedicated their lives to creating families.

References:

(1): Black’s Law Dictionary. 9^th ed. Weslaw, Eagen, MN, 2009.

(2): http://www.websters-online-dictionary.org/definition/donation

(3): ASRM Ethics Committee Report. American Society for Reproductive Medicine: Defining Embryo Donation. Fertility Sterility, 2009;92(6):1818-9.

(4): Ethics Committee of the American Society for Reproductive Medicine. The moral and legal status of the preembryo. Fertil Steril 1994;62:32S-4S.

(5): United States Food and Drug Administration. Eligibility determination for donors of human cells, tissues, and cellular and tissue-based products; final rule and notice.

(6): Florida Statute Section 742.14

Craig R. Sweet, M.D.
Medical & Laboratory Director
Specialists In Reproductive Medicine & Surgery, P.A.
Embryo Donation International (trademark pending)

12611 World Plaza Lane, Building 53
Fort Myers, FL 33907

E-Mail: Fertility@DreamABaby.com
Website: www.DreamABaby.com
Blog: www.SweetFertility.com
Facebook: http://bit.ly/cm8yki
Twitter: http://twitter.com/drcraigsweet

Harold S. Eskin, Esq.
Harold S. Eskin, P.A.
1420 SE 47^th St.
Cape Coral, FL 33904

E-Mail: haleskin@legalsurrogacy.com
Website: www.legalsurrogacy.com

updated 6/4/10