Can I Adopt An Embryo?
With the rise in popularity of in vitro fertilization (IVF) in the last several years, many couples are now facing the question of what to do if they have remaining embryos after they are done building their family. Embryo adoption is a creative solution for couples who have embryos remaining after IVF, which allows the biological parents of an embryo to donate it to another couple. The adoptive mother is implanted with the embryo, and gives birth to a child that is not biologically related to either her or her husband. Embryo adoption thus creates an additional option, besides fertility treatments or adoption, for couples facing fertility issues. However, the law has not kept pace with scientific advances, leaving uncertainty as to the legal rights of both adoptive and biological parents.
In Colorado, a mother-child relationship is established by proof that: (1) she gave birth to the child; (2) genetic testing; or (3) through use of donor eggs or sperm. However, what happens when there are two women, one who gave birth to the child, and one who is biologically related to the child? When two individuals claim to be a child’s parent, the court uses the “best interests of the child” to determine who the legal parent is. This is a highly fact-intensive inquiry, and can create uncertainty regarding the identity of a child’s legal parents.
No court has yet resolved a “custody” dispute between embryo donors and adopters. However, these types of disputes will become more common as the popularity of assisted reproductive technology continues to grow. In 2010, two couples in got into a dispute over the custody of frozen embryos after entering into an embryo adoption agreement.[1] The parties settled the dispute privately, but the story illustrates the perils inherent in these kinds of transactions.[2] Other couples have advertised their embryos for donation on Craigslist.[3] Without laws to guide the parties and the courts on how to conduct these transactions, the enforceability of these types of agreements is uncertain.
Decisions about assisted reproductive technology are made during some of the most vulnerable and emotional times for a couple. Given the legal uncertainties regarding these types of agreement, the need for legal counsel is imperative.
Have questions about embryo donation or adoption? Give Katelyn a call today!
[1] Cynthia S. Marietta, Frozen Embryo Litigation Spotlights Pressing Questions: What is the Legal Status of an Embryo & Can It Be Adopted?, available at http://www.law.uh.edu/healthlaw/perspectives/2010/marietta-embryolegal.pdf (2010).
[2] Nancy Cambria, Families Settle Dispute Over Frozen Embryos, St. Louis Post-Dispatch, May 14, 2010, http://www.stltoday.com/news/local/metro/families-settle-dispute-over-frozen-embryos/article_824aef94-c15b-5030-94dd-4ba4db82104f.html?mode=story (February 26, 2013).
[3] Krystle Kacner, Unique Donation: Iowa Couple Helps Families, available at http://whotv.com/2012/05/09/unique-donation-iowa-couple-helps-create-families (March 2, 2015).