First, both the donor and recipient couples should acknowledge that the law of embryo donation and adoption is unsettled. There are no federal or state laws specifically governing the adoption of embryos although some states do have laws generally related to embryo donation and or assisted reproductive technology.

Second, the embryo donation and adoption process involves adoption and agreement and relinquishment forms, which are legal contracts between the donor and recipient couples. These forms formalize the genetic parental relinquishment of their parental rights prior to the embryo being transferred to the receiving mother. Once transferred, the embryos belong to the adopting parents. Parties involved should also note that embryos have a special legal status that is yet to be clearly defined. While many courts are reluctant to classify embryos as property, they also do not characterize them as human beings. As a result, embryo adoption programs may differ in how they define embryos in their legal agreements. Some may refer to embryo donation as a transfer of property while others may incorporate traditional adoption language into their legal documents.

While no states have laws which specifically address embryo adoption or donation there are several states with laws which are related to or directly affect embryo donation and adoption. The following provides examples:

• California: California Health & Safety Code §125315 provides that doctors must inform in-vitro fertilizations (IVF patients) of embryo disposition options, including donating to another couple; written consent is required for any such donation. California Penal Code §367g imposes criminal penalties of up to 5 years imprisonment and/or a $50,000 fine upon anyone who implants embryos in anyone other than the provider of those embryos without the provider's and recipient's written consents.

• Louisiana: Louisiana Revised Statutes §9:123 unequivocally provides that an embryo is a juridical person, and under §9:131, any disputes concerning the embryo must be resolved in the embryo's best interest. Section 9:127 imposes a duty of responsibility for the safekeeping of any embryo on the physician or medical facility causing the fertilization of such embryo, while §9:126 appoints the in vitro fertilization doctor as a temporary guardian of the embryo in certain situations until such time as adoptive implantation can be performed. Section 9:129 prohibits the intentional destruction of any viable embryo. Under §130, adoption occurs only when both parents execute a notarized writing to document the donation of embryos and whenn a live birth occurs. That section also prohibits the donating couple from receiving compensation in exchange for renouncing their parental birth rights.

• Oklahoma: Under §556 of Title 10 of the Oklahoma Statutes, written consent of both donating and recipient couples is required for embryo donation. The doctor who is to perform the transfer must file those consents with a court having adoption jurisdiction in the state. Section 1-730 of Title 63 of the Oklahoma Statutes defines "unborn child" to mean the unborn offspring of human beings from the moment of conception through pregnancy and until live birth and specifically includes "embryo".

• Texas: Under §160.704, the consent of a married woman to an ART procedure must be in record signed by the woman and her husband, with embryo donation being included within the definition of Assisted Reproduction Technology (ART) under §160.102. Clarifying this point further, §160.702 provides that a donor is not considered the parent of a child conceived through assisted reproduction.

• Florida: Florida statute states:

  742.14: The donation of eggs, sperm or preembryos

  The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.

  742.11: Presumed status of child conceived by means of artificial or in vitro insemination or donated eggs or preembryos

  Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination.

  Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by means of donated eggs or preembryos shall be irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos.

• If a state's laws are silent on the issue of embryo adoption, are there any steps that can be taken to protect the recipient family's parental rights? Most states recognize the birth parents as the legal parents. In embryo adoption/donation, the recipient couple's names are entered on the birth certificate and a court of law would most likely recognize them as the legal parents. Some families have opted to seek an order of parentage from the court while the adoptive mother is pregnant with the child to settle the issue prior to the child's birth.

• Is there a risk of commercialization of life through the adoption of embryos? There is always the risk of abuse in any process. Therefore, it is imperative that embryos be treated with the respect they deserve and, in order to discourage program participation based on profit incentives, that fees remain low. Embryo adoption programs must be operated with ethical and professional integrity.

• What roles may an agency or attorney fulfill in the embryo adoption/donation process?
  • Phase One:The process starts with an initial inquiry from a family either desiring to place their embryos for adoption or to adopt embryos.

  Agency/ Attorney Roles: Staff should be in place who can answer the resulting questions and prepare and mail program information packets and applications. When applications are received, they should be reviewed and approved by an assigned adoption social worker who reads the home assessment (in the case of an adoptive family), interviews the client to discuss matching criteria and address and resolve any issues concerning the placement or adoption of the embryos prior to the family being approved for participation in the program.

  • Phase Two: Both the donating and adopting families establish their criteria for a successful match which will lead to an embryo placement and adoption. A matching process initiates.

  Agency/ Attorney Roles: Once a successful match has been made, each set of parents drafts and signs contracts; embryos are shipped to the adopting family's clinic, and the adopting family is then able to schedule their frozen embryo transfer (FET). Depending on the form and frequency of any on-going contact between the families, an agency or attorney may need to continue to act as intermediary for such contact. There is also the possibility that additional matches and contracts will need to be performed if an adopting family does not use all of the donating family's embryos.

• Why should an adoptive home assessment or homestudy be performed when embryo donation/adoption is generally not recognized as a true adoption proceeding in the United States? The importance of the homestudy lies in its purpose to help couples have not only healthy children, but healthy families.

  An adoptive homestudy for the recipient couple ensures that the safeguards currently in place for traditional adoption also protect the child, the placing parents and the receiving parents in an embryo adoption situation.

  Despite the fact that the adoptive mother gives physical birth to a child from an embryo donation, that child is still an adopted child; he or she shares no genetic relation to the adoptive mother or father. When children are born into a family to whom they are not genetically related, they will have the same types of questions as those of children adopted through traditional means. The homestudy process is 20% screening and 80% education. It provides the adoptive family with an opportunity, to learn about and anticipate these types of issues and questions. The homestudy also educates the parents in the best way to address and answer these questions with sensitivity to the needs of the child.

  Since the homestudy process provides the donating parents with assurance about their embryos' prospective parents, they are also benefited. This assurance includes:

  • the adopting family has been evaluated for any health issues that may affect their ability to care for and raise a child,

  • has been screened for any criminal and child abuse issues,

  • has been educated concerning the potential issues of parenting a non-genetically related child

• How many donation/ adoptions occur nationwide each year? There are no national statistics regarding the number of embryo donations/adoptions that occur each year. Each program can vary widely with some programs performing as few as 1 adoption or donation per year, while others may complete as many as 40 placements a year.

• What legal documents are used to transfer the embryos from the donating parents to the adoptive parents? Necessary legal documents include:
  • A document relinquishing the genetic parents' rights and responsibilities to the embryos and any child or children born from those embryos

  • A document allowing the recipients to assume all parental rights and responsibilities for the embryos and any child or children born from them.

• At what point is an embryo adoption considered to be finalized? Although there is little or no precedence on this issue, the language of the written agreement effecting the transfer of ownership in the embryos may specify that the adoption is deemed to have occurred at the point of thawing and implantation of the embryos into the adoptive mother's womb.

• If we wanted to start a program, what is the typical fee schedule? As in any adoption program, the fees charged will vary depending on the type of organization offering the service, the geographical area being serviced, and the motivations of the program founders. Typically, the fees for embryo adoption are less than those for a traditional adoption.

• What average time commitment should an agency or attorney expect to invest with each placement? A typical time investment can range from 100 to 200 hours per family choosing to adopt or place embryos in adoption or donation program. The time spent can be broken down into the following types of activities:
  • processing the application

  • counseling and matching the families

  • preparing the documents for transfer of legal ownership

  • coordinating the medical documentations

  • facilitating shipment of the embryo

  This list is by no means exhaustive and the time required to place embryos may vary greatly depending on the needs and desires of each individual family.

• Are there any tax implications of embryo donation and adoption? There is some support for the application of the adoption tax credit to embryo adoption. Some families have applied for the tax credit with regard to the fees paid to their agency for the adoptive home assessment, educational component, and other adoption agency or attorney expenses directly relating to the adoption of the embryos. These may be families who have participated in an embryo adoption program and who have given birth to a child as a result.

  This information is not intended to be a complete or comprehensive statement of the law in this area. It should therefore, in no way, shape, or manner, be construed or interpreted as providing legal advice. You are advised to conduct your own independent research as to the applicability of the adoption tax credit to embryo adoption or to seek the advice of a tax professional, Certified Public Accountant, or financial adviser.