What You Need to Know About Embryo Adoption

With changes in technology and modern medicine, people are turning to various ways to build their families through assisted reproductive technology, such as through IVF, surrogacy, or egg, sperm, or embryo donation. Often referred to as “embryo adoption,” embryo donation allows families to share the embryos that they are not going to use with recipients to use in their own family building. It allows the recipients - which are the intended parents - to receive embryos to carry themselves or use with a gestational carrier, and to have background information on the embryos and any children already born.

Because embryo donation is not regulated by federal law or a central database, it is not known exactly how many embryos there are in the U.S. It is estimated there are over a million embryos that are stored, and may be available for donation. There are also stored embryos that may not be available for donation, which could be due to an unclear disposition plan, not paying storage fees which can be upwards of $500 – $1000 per year, or being stuck in litigation during a divorce. With the recent Alabama Supreme Court case finding embryos to have “personhood’ rights, many are considering a plan for their unused embryos.

To donate embryos, people may find each other directly through their clinics or social media, or may match through an embryo matching agency. Recently, families have been finding each other directly to donate embryos – those which have embryos they are not planning to use and match and donate to another family seeking an embryo – which creates a more personal connection rather than using a resource that may be de-identified. This article outlines the legal considerations and process of embryo donation between independent parties.

IT’S NOT AN ADOPTION AT ALL.

Embryo donation is a donation of genetic material from a donor and their spouse if they have one, giving their stored embryos to the intended parents, who plan to use the embryos themselves. The parties will enter into a Donor Agreement to set the terms and expectations of the donation, legal rights, and future communication. It is important to make sure the embryos are free to be donated based on any prior agreements, such as if the embryos were originally created with any donated genetic material, such as eggs or sperm from an anonymous bank, donor, or fertility clinic. Depending on the states involved and what is needed to establish parentage, an adoption may occur once a child is born, though is not part of the embryo donation process. As laws in this area are constantly changing and it is important to check with a specialized attorney in your state before proceeding with an embryo donation.

2. THERE WILL BE OTHER CONTRACTS TO SIGN.

When working through an embryo donation situation, it is likely there are various contracts related to assisted reproduction to review and sign with the clinic and any agency or other third-party involved, in addition to the Donor Agreement between the parties. For example, the donors may have to sign documents to release the embryos from their clinic or storage facility, and the intended parents will have to sign documents to transfer the embryos, accept the embryos, and confirm a plan for embryo disposition. There may be transportation services provided by one of the clinics or storage facilities, or a third-party transport, and if an agency is involved they will likely coordinate such aspects.

3. LAWYERS AND THERAPISTS WILL BE INVOLVED.

The donors and the intended parents will work with their own independent attorneys to negotiate a Donor Agreement and provide legal clearance for the clinic to release the embryos to the intended parents. It is recommended to have an attorney specializing in reproductive or fertility law to also review third-party contracts, such as with the fertility clinic, cryobank that stores the material, or the agency/matching entity. Most fertility clinics and attorneys will also recommend the parties have a counseling session with a therapist separately and all together to discuss the genetic connection of any future children. The intended parents are expected to pay for the cost of the attorneys and therapists involved the matter, for all parties.

4. YOU’LL NEED TO PLAN FOR EMBRYO DISPOSITION.

Upon receiving the embryos at the fertility clinic, you will have the option to genetically test the embryos if you wish to, use an embryo for an IVF transfer, and freeze (or cryopreserve) the remaining embryos. The fertility clinic will require contracts to be signed for any testing and storage, and this will include how you wish to dispose of any remaining stored embryos. Embryos may be disposed of through donation, as discussed here, or upon an event such as death, divorce, separation, and includes what happens due to nonpayment of storage fees. Parties may elect for one person to get them should they get divorced or pass away, and want to make sure any other documents such as a prenuptial agreement or testamentary documents match the same plan for embryo disposition. Embryos could be donated to another family, to the clinic or bank, for science and research, or can be thawed and disposed of.

5. YOU’LL HAVE TO THINK ABOUT THE LONG TERM.

In the Donor Agreement, everyone will outline the expected privacy and any type of communication they would like in the future, and the likelihood that any genetic relatives may finds each other, such as through at-home DNA testing kits. The children or any genetic siblings contemplated in the Donor Agreement are not parties to the agreement. If the embryos were originally created with any donated genetic material, such as eggs or sperm from an anonymous bank, there may be other unknown genetic siblings. Parties may also agree to communicate certain genetic or medical information that a party may learn in the future. It is important to discuss these aspects with a therapist and with your attorney prior to entering into a Donor Agreement.

If you are interested in learning more and working together, please contact us here.

This article is for informational purposes only and is not legal advice.