Myths About Embryo Donation

by Susan L. Crockin, Esq.
Crockin Law & Policy Group, LLC

Published April 2011
Edited May 2011

MYTH: Embryo donation is really “embryo adoption” and adoption laws apply.

BUSTED!: It is not adoption! Although some programs and popular press articles use the term “embryo adoption” loosely, embryo donation is a unique family building option. It shares similarities with donor sperm, donor egg and adoption of born children, but it is not the same as any of them. Adoption of a child invokes state-specific, age-old adoption laws and protections, requires home studies, and often gives birth parents a right to change their minds and revoke any consent for several days or even weeks after a baby is born. It generally works very, very differently from embryo donation.

Confusing the language confuses the concepts, and frankly “embryo adoption” language has often been used as a very thinly veiled argument to both promote the anti-abortion position that life begins at conception and to try to restrict IVF and embryo freezing. In reality, existing adoption laws never apply to embryo donation. Less than ten states currently have any law (statute) on embryo donation — the majority of those consider it donation along with egg and sperm donation and make it clear that donors have no parental rights and recipients are considered the legal parents of the child at birth. At last count, only two states (LA and GA) referred to embryo donation as “embryo adoption.”

Myth: “We have to be married, religious couple, and agree to never terminate any pregnancy regardless of health or other reasons.”

BUSTED!: Not true! Embryo donation is available from a wide ranging group of medical and matching programs and individual donors, and the practices or restrictions vary considerably. While there are a number of faith-based matching programs that frequently use the terminology of adoption quite loosely, this is not the only option available. For those who fit those programs’ criteria and do not object to restrictions on their procreative choices (no abortion or selective reduction, and usually an agreement to return any unused embryos to the donors or matching program), this can be an attractive option often with available embryos. On the other hand, there are a number of IVF medical programs, non-faith based matching programs, and many patients seeking to donate their embryos who do not place these types of restrictions on recipients. Embryo donation can be done anonymously or be fully open; you may or may not be asked to return unused embryos; you may or may not have restrictions or future guidelines placed on you. Do your homework, ask your physician, local RESOLVE chapters, and use the internet to locate resources and options. Ultimately, if you choose embryo donation as your path to parenthood, you should include both mental health professional and experienced reproductive attorneys in your planning and decision-making. The more information you have, the better prepared you will be to consider this family building option in general and evaluate more specifically which path is most appropriate for you.

Myth: Embryo donation is just as expensive and just as hard as IVF with donor egg.

BUSTED!: Embryo donation should be easier and less expensive than IVF with donor egg. Because the embryos have already been created and are already frozen, there are no IVF fees, no stimulation medication fees, and embryo donors—unlike egg donors—cannot be compensated. It is also easier because the embryos are already created, so there is no coordination of your cycle with a donor’s. Although there are very few state laws, there are ethical guidelines established by the American Society of Reproductive Medicine (www.asrm.org) that clearly spell out medical screening requirements, psychological issues, compensation restrictions, and legal uncertainties of embryo donation. You will have to pay for the IVF program’s medical and transfer fees, any extra costs of all FDA-required or recommended testing of the embryos or donors, as well as any additional storage fees from the time you decide to use any embryos. You may also be asked to cover miscellaneous out-of-pocket costs, such as missed workdays if embryo donors need testing or to see a mental health professional, but embryo donors do not receive compensation as in sperm or egg donation. It is also strongly recommended that both donors and recipients consult their own independent, experienced reproductive technology attorney. Recipients typically cover both attorneys’ fees. There may be fewer available donor embryos than eggs, and there will be no genetic connection with the intended father, but the costs and ease of the process should much lower.

Myth: “The donors will come back and want my baby!”

BUSTED!: It is virtually unheard of for embryo donors to come back — it is much more likely that they will want some information about the outcome of the donation and potentially a mutually acceptable agreement as to updates and/or limited contact between you and/or your children and them and any children they may have had.

In one case, embryo donors requested UNUSED embryos be returned as their contract had specified. Because the patients had all used a faith-based program as an intermediary, they had agreed to do this and also referred to the embryos as “children.” The recipients initially resisted on the grounds that because any as yet unused embryos were also children who were therefore ‘sibilings’ of the children they had given birth to from the donated embryos, the embryos should remain with them despite their agreement to return them. The case, which was ultimately settled, points up one of the potential risks of considering embryos adoptable and applying characteristics of living children to them. Both donors and recipients of any embryo donation arrangement will want to try to be sure they are all in full agreement before they start down this family building road together.

Myth: Our child will have half-siblings all over the country or even the world and we won’t know it!

BUSTED!: It is actually unlikely there will be a large number of multiple donations from the same donors who are likely to have used many of the embryos their IVF program considered the “best quality” themselves — and legally your children will not be “siblings.” Nonetheless, sensitivity to this issue will both help you consider this option now and help you as you parent any children you have through embryo donation. Through some programs you will be told of all other children born to either your donors or other recipients; through others the process is totally anonymous. As with egg and sperm donation, and many years ago with adoption, however, anonymity today does not mean anonymity forever. Laws may change, societal norms may change, and children may in fact seek biological connections — all of which have been made much easier through the internet.

Preparing for parenthood through embryo donation should include an understanding of the information you, your donors, and any other recipients will be given, as well as proactively drafting and entering into an agreement with your donors — whether directly or through a third-party intermediary — that spells out when and under what circumstances you or your children may contact or be contacted in the future, along with other issues that have been raised in the process. Embryo donation is still a relatively new ART family building option, so both parents and professionals should recognize that the best preparation and strategy will be to do your homework, and get and follow good advice from medical, legal and mental health professionals as you move forward. Good luck!