Embryo Adoption and the Law

The adoption of frozen embryos is an international practice that has proved challenging from a legal perspective. More and more couples and individuals are procreating through assisted reproductive technologies (ARTs) such as in vitro fertilization (IVF), which entails the creation and early development of a number of embryos outside the womb. Many of these couples end up with surplus IVF embryos after they consider their families complete, and donation of these surplus embryos by the IVF patients to other infertile couples is one among several embryo disposition options that the law permits. However, judges and legislators in many nations have found regulation of embryo donation to be anything but simple.

In this chapter, I aim to show that embryo adoption may be carried out whether embryos are treated (1) as constitutional persons who cannot be owned and who are entitled to the same legal protections as born children, or (2) as property which lacks legal rights of its own and can be disposed of according to the wishes of its owners. In short, under embryo-as-person treatment, IVF practice would be limited to creating only the number of embryos in a cycle that could and would safely be transferred to the maternal womb during that cycle. The constitutionally protected right to life would dictate that currently frozen embryos be either cryopreserved indefinitely or transferred to maternal wombs to continue their natural development which was artificially interrupted. In fact, Germany and Italy, both of which treat the embryo as a legal person, have already legislated to this effect. In embryo-as-person systems, frozen embryos would be adopted as any other child with some legal variations reflecting the different timing and technology involved. Abandoned frozen embryos might even fall under abandonment statutes, which provide that children whose genetic parents neglect to care for them come into the care of the state, and then the state places them in adoptive families.1 Courts would be involved every step of the way, from safeguarding embryos’ constitutional right to life to overseeing their placement with those who offer them gestation, a family and a home.