Q: What are the most significant legal issues associated with embryo adoption?
A: The most significant legal issue associated with embryo donation and adoption relates to 1.) The unsettled nature of embryo adoption law and 2.) The contractual agreements used to legally bind donor and recipient couples.
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 the 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.
Q: What laws govern embryo adoption?
A: In the United States, embryos are considered property, not people and therefore the ‘owners’ (the donor) of the embryos transfer the ownership to the recipient family via contract law.
In Georgia, legislation was passed in May 2009 granting embryo adoption parents the right to finalize their
adoption in court.
In Louisiana, embryos are considered ‘juridical persons’ which meant: Entity (such as a firm) other than a natural person (human being) created by law and recognized as a legal entity having distinct identity, legal personality, and duties and rights. Also called artificial person, juridical entity, juristic person, or legal person.
Q: Is it legal for the donor to request reimbursement for their IVF expenses as part of their donation?
A: The term ‘donation’ implies that the embryos are being given, without charge, to the recipient. Since the inception of embryo adoption through adoption agencies, donors have not received compensation for their embryo donation.
When a couple determines to pursue IVF treatments, they are making that choice as a direct benefit to themselves. Most often, a couple with remaining embryos has them because excess embryos were created as a part of their IVF treatment. They have now completed their family building and are choosing a disposition for their remaining embryos.
Any sort of direct compensation for embryos themselves is under the legal jurisdiction of each state, and interested parties should seek legal advice to determine the applicable laws in their state. In general, such payments are NOT recommended b the American Society for Reproductive Medicine (ASRM) or the American Medical Association (AMA) on ethical grounds.
Visit www.EmbryoAdoption.org for more information.
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