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It
is actually estimated that there are well over 100,000 frozen embryos
in storage in the United States alone. And, with the recent
advances in Assisted Reproductive Technologies (ART) and improved
cryopreservation techniques, this technology has led to the wider use
of frozen embryos for both donation and research. With that in
mind, embryo donation still remains a comparatively new possibility
that is just gaining ground as another viable option for those
individuals and couples who have been desperately wishing for a
child. In fact, it is often the only remaining viable alternative
for those who have already been on the rollercoaster of infertility for
many years and who have already invested significant amounts of time
and money into their journey.
Although the number of available embryos may seem high, the actual
number of embryos available to couples and individuals is really much
lower since it is often a difficult decision to donate leftover embryos
to someone else. In fact, many couples choose to destroy their
remaining embryos or maintain them in the frozen state indefinitely
since they are not willing to be contacted by any resulting
child. On the other hand, the major motivations for the donation
of one’s embryos are usually to give the embryo a chance at life or to
allow other infertile couples to have a child.
What the ideal solution for any person is, whether to thaw and destroy,
donate to stem cell research or donate to another person, may be the
biggest decision faced by those with embryos in storage – in fact, it
is a decision that is highly ethical, morally, and emotionally
charged. For example, full siblings may never know one another,
and there is the issue of contacting genetic siblings and parents in
the event of health and medical issues.
Legally, it is also often confusing since one school of thought
believes it to be an adoption while others a donation – with those
choosing adoption seeing the embryos as children awaiting their
destiny. The description used is important since it has
implications for both the pro-life and pro-choice movements.
Whatever way you choose to view this possibility – every donor must
certainly consider the following possibilities when making your
decision: a.) whether you will want the embryos for future siblings for
any of your existing children; b.) how you feel about the real
possibility that there may be other children alive who are the result
of your own genetic material or that of your partner and a donor; and,
c.) the pain of not knowing the result of your donation.
Once a couple has decided to donate their embryos, there is one
additional legal issue that cannot be disregarded; this issue revolves
around the agreement between the donor parents of the embryos and any
egg or sperm donor that was involved in the creation of these
embryos. Specifically, if an egg donor or sperm donor agreement
is in place that spells out the donor parents cannot donate these
embryos to another couple without his or her consent, then this must
absolutely be followed in order to protect the rights of the recipient
parents. It would be a tragedy to the recipient parents to have
to deal with any litigation that may result if an egg donor discovered
that the embryos from her donation were donated to another couple
without her consent. Although the rights of the egg donor have
already been terminated, this sort of dispute can be a very scary
discovery for a recipient couple that has already given birth to their
resulting child.
On the other hand, the options that are available to recipient couples
and individuals are very few and far between once it has been
determined that they need to move onto donor embryos. For
example, you can sign up with a doctor’s office that has a lengthy
waiting list for available embryos, or you can contact an adoption
agency such as the SnowFlakes Embryo Adoption Program, whereby the
participants are required to follow the same requirements that exist
for traditional adoption. The other options are to locate embryos
independently online (which is absolutely not recommended without some
guidance from a physician, lawyer or psychologist) or to sign up with a
non-profit agency, such as Embryo Options, which provides the parties
the option to tailor their arrangement to their own needs and desires,
such as whether to have a relationship with the other party that is
open, semi-anonymous or totally anonymous. Each of these programs
are different in many aspects, and it is really a personal choice of
any recipient couple or individual to choose the program that best fits
their needs, whether religious, financial or otherwise.
In fact, once a couple or individual has reviewed the available
programs, they need to be certain of a number of things before making a
decision: 1.) Be aware of all financial requirements that are
involved with these embryos, including but not limited to medications
and clinic fees, if any, and whether the donors are requesting any fees
in return; 2.) Ask questions about the program’s own guidelines and
protocol; 3.) Ask the program how donor parents and recipient parents
are selected and matched. Discover if the parties have the option
to turn down embryos that have been offered to them or not; 4.) Ensure
that the recipients and their doctor are entitled to the embryo quality
reports, the (redacted) medical records of the donors and the results
of any successful pregnancies.
Yet, no matter if you are a donor or a recipient; the parties must
follow a protocol that protects everyone, to include any resulting
children. In fact, the parties must sign legal consents, have a
counseling session with a psychologist or social worker, and undergo
infectious disease screening. The purpose of counseling is to
discuss issues such as disclosure to the child at an appropriate age –
both for medical and social reasons.
From a legal standpoint, the legal system, nor the states’
legislatures, has clarified the actual donation of embryos from one
couple to another. However, the case of Davis v. Davis (Tenn.
1992), as well as several others, have essentially given embryos the
status of property when a dispute over the embryos arises out of a
marital dissolution action. The courts chose to decide against
“forced procreation,” instead of providing the embryos with a higher
(protected) status due to their ability to become life. In an
effort to clarify the status of the embryos from the standpoint of
donation, attorneys in this field have chosen to use this same argument
to treat the embryos as the donation of genetic material, or property
in a sense, from one couple to another much like egg
donation.
Essentially, the lessons learned over the last decade have shown those
attorneys practicing in this field that precise contract drafting is
absolutely essential – your attorney must carefully scrutinize the
contract terms since there is strong dicta favoring
enforceability. Furthermore, the reimbursement of costs that may
be requested by a donating couple must be considered very carefully
before agreed upon by a recipient couple. Certainly, any
additional medical testing required by the recipients’ clinic, as well
as any outstanding storage fees, are acceptable fees to be paid;
however, anything additional can make the donation itself
questionable. To be sure, the donation of embryos does not
involve the same sort of pain and suffering associated with the
donation of eggs; therefore, it is best to stay away any additional
reimbursements that can be construed as the purchase and/or sale of
embryos.
Finally, the success rates from the transfer of frozen embryos is
certainly lower than that of a fresh embryo transfer, as is reported by
the American Society for Reproductive Medicine (ASRM); however, the
availability of this option of donor embryos is certainly one that
should be considered by everyone, donors and recipients alike. To
donors, it is the chance to help others and provide life to their
frozen embryos; while, to recipients, it is a viable alternative in
their journey to creating their families – just remember to ensure that
all parties, to include the resulting children, are protected.
As a final note: this option provides a partial
solution to other people who have been dealing with an issue similar to
yours – their infertility. In addition, it also helps solve
another problem – the growing stockpile of abandoned embryos. Lessons
learned over the decade have shown that precise contract drafting is an
essential function for the attorney, who must carefully scrutinize
contract terms since there is strong dicta favoring enforceability.
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Contributed by attorney Theresa M. Erickson
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