Back when I first opened my adoption practice and before I was doing Assisted Reproduction Technology (ART) law, a new client called and told me that she was interested in adoption. As I usually do in such cases, I asked her whether she had given any thought yet to what age child she would like to adopt. A newborn? Toddler? An older child? I was somewhat surprised when she replied, “we are interested in embryo adoption. Do you have any experience with adopting embryos?” Of course, at that time I had no such experience, and in fact I was completely puzzled by the question. I knew that you can’t adopt a baby before that baby is born, so the idea of an embryo being adopted completely flummoxed me. So, I did what any attorney in the age of the Internet would do: I Googled it.
Here is what I learned. If a family has gone through in vitro fertilization (IVF), they may have frozen embryos left over, stored in the cryobank after they have decided not to have any more children via IVF. They may choose to keep them frozen, destroy them, donate them to medical science, or donate them for a couple who can’t conceive on their own. This last option, embryo donation, is what leads to “embryo adoption.” Certain agencies and fertility clinics allow infertile couples to have a donated embryo implanted either in the “adoptive” mother or in a surrogate.
Why do I keep putting the words “adoption” and “adoptive” in quotation marks? Well, as I mentioned earlier, no child can be legally adopted before he or she is born, so legally speaking, embryo adoption is simply not adoption. It’s simply a contract governing property, in this case an embryo. The parties must draft a contract making it clear that the donating couple claims no parental rights over the embryo, and that the “adopting” family takes full responsibility for that child. However, since most families do not like to think of their future children as property governed by contract (who would?), the agencies have coined the euphemism “embryo adoption,” which sounds much nicer.
Reputable agencies also follow the procedures of domestic private adoptions for these embryo transfers, including requiring a home study for the “adoptive” parents, requiring that both the donating couple and the adoptive parent(s) are represented by attorneys, conducting “matching” to make sure that the two families are a good fit, and ensuring that all parties get counseling. However, since Assisted Reproductive Technology is unregulated or lightly regulated in many states (including my home state of Virginia), they are not required to do this. It is up to the families involved to make sure that the agency is reputable and that all parties are well-informed, prepared, and protected.
Now that I am an ART practitioner myself, I have a much richer understanding of “embryo adoption” and how it works legally. However, the basic premise that I learned on that first day remains sound: Embryo adoption is not adoption, and people who are building their families do well to hire an experienced lawyer who can explain the difference and protect their rights.
Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.