Note: Embryo Adoption: The Solution to an Ambiguous Intent Standard

By Molly Miller. Full text here.

When a person or couple elects to use in vitro fertilization to create embryos they often end up with more embryos than they need. Most fertilization clinics now require these people to specify what they want done with the remaining embryos (destruction, storage, donation to science, or donation to others for artificial reproduction). Nevertheless, there are still hundreds of thousands of frozen embryos stored in fertilization clinics in the United States, and many people are uncertain as to what should be done with them. One option embryo creators have is to donate unused embryos to others. Litigation surrounding embryo donation is limited. The few cases that do address embryo donation and parentage have arisen as a result of poor clinic administration and have come to troubling conclusions. Legislation also fails to fully consider the parentage implications of embryo donation. Yet as embryo donation becomes more widely used a greater need for applicable legislation is likely to arise. Assisted reproductive technology is dynamic and quickly evolving. Proposed regulation will likely restrict the market and create a demand for cheaper and more readily available forms of reproductive technology, such as embryo donation. Legislation in this area is necessary in order to transition the system as a whole into a regulatory framework that will provide predictability for parents and guidance for courts.

A limited number of lawyers have begun to treat embryo donations for artificial reproduction like adoptions. For the time being it seems as though embryo donation relies heavily on contracts between the involved parties. Though these contracts have not been heavily litigated, the analogous situation of surrogacy provides a lens into the legal implications of relying on contracts for the exchange of genetic material. Courts show a willingness to disregard these contracts and rely on biological standards to determine parentage. However, these biological standards, if taken to their extreme, create gaps that could lead to legal parentlessness for children born as a result of embryo donation. Courts also rely on the intent of the parties involved in surrogacy, going beyond the intent expressed in their contracts. Recent uniform legislation has even offered a definition of the intended parent as distinct from the genetic or gestational parent.

Since biology will not determine parentage in embryo donation and since courts do not always enforce contracts for artificial reproduction, some other system that recognizes and enforces intent needs to be implemented. This can be done by solidifying the formation of intent and better defining the intended parent. Intent should be recognized at the time an embryo is created, and the status of intended parent should be given legal weight when it comes to determining parentage in artificial reproduction. A regulatory system that mimics the current adoption system should be used to transfer intent and the status of intended parent in the context of embryo donation.