ABA Health eSource
 December 2006 Volume 3 Number 4

Extra Embryos
by Robin S. Levine 1 , Secrest Wardle, Champaign, IL

Robin S. LevineA recent CBS news report claimed that there are 400,000 frozen embryos in storage in fertility clinics across the country." 2 With an estimated one of ten couples in the United States experiencing infertility, more and more embryos are being created through in vitro fertilization (IVF). 3 The projected storage costs can rise to above $200,000 a year for these frozen embryos. While this estimate does not correlate in any way to the number of children that might be born from these embryos, it suggests the scope of problems that can arise from storing such a high number of frozen embryos. This article reviews various issues involving frozen embryos caused in part by inconsistent terminology and legislation.

Options for Handling Frozen Embryos

The current options for the owners of these frozen embryos are to (1) use them for IVF treatment; (2) save and store these embryos for future use while paying associated storage costs; (3) donate these embryos to couples that wish to have them implanted; (4) donate them for scientific research; or (5) destroy them. This article focuses on the transfer or donation of embryos to couples wishing to have them implanted and to ultimately raise the child.

Religious Implications

Some religions strongly object to destroying these potentially-viable embryos and instead encourage embryo transfers. The prevalent argument against this approach is that condoning the transfer of embryos to other infertile couples encourages the creation of embryos by religiously objectionable methods. However, in a purely legal sense, is this fairly analogous to a child born of a rape? The issue is then not how the child came into being, but that the child exists.

A Christian adoption agency has a special program called "Snowflakes" designed for "embryo adoption." 4 The Snowflakes agency asserts that life begins at conception and strives to have all "leftover" embryos placed in "adoptive" homes. The organization conducts home studies and other adoptive screens —and charges fees for these services. Snowflakes also offers so-called "open adoptions" in which both the genetic couple and the intended couple stay in contact with one another before, during, and after the adoption process. In an open adoption, the genetically related siblings also remain in contact with each other. This service creates additional dilemmas. While the link to genetic siblings can offer advantages, especially in the case of genetic diseases, this should be weighed against the potential retention of rights by the genetic donors. An argument may be raised by the genetic parents that they have rights to this child as the genetic parents and they have maintained visitation rights. What happens if an abuse and neglect scenario arises and the intended parents are found unfit? Are the genetic parents now entitled to some standing? What about for purposes of inheritance? Are the children able to inherit from both the genetic and intended parents? An interesting point raised by a PBS commentator 5 is that the feelings of the child must be considered when he or she learns of these genetic siblings. For example, such a child might seriously question how the choice was made regarding which embryos to keep and which to give up—just as other adoptive children may question why they were put up for adoption.

Within religions, there are far different views about when life begins and about IVF which, in turn, leads to differing views about how to deal with embryos already in existence:

  • The Roman Catholic Church, the Church of England, and the Presbyterian Church of Scotland have fundamental differences about the procreation of children. 6 The traditional Catholic position is that life begins from the moment of fertilization. The Congregation for the Doctrine of the Faith, Donum Vitae, II 4 7 condemns assisted conception bypassing intercourse as a violation of the child's right to be conceived by an act that is both a spiritual and bodily union.
  • Muslim beliefs vary by sect as to when when life begins -- from the soul entering the fetus in the fourth month of pregnancy, associated with quickening -- to about six days after fertilization when the embryo attaches to the inner lining of the uterus. 8 Marriage is viewed as a contract between the wife and husband as to which no third party should intrude. Adoption of a child from another couple is generally prohibited; likewise an embryo transfer would be prohibited.
  • Buddhism generally does not approve of IVF. 9
  • Judaism does not recognize a fertilized egg as a person until it is implanted in the womb. 10

Legal Issues

Unfortunately, the term "embryo adoption" appears to be creeping into the vocabulary. Legally, this term can be disastrous since these transactions do not readily fit into current adoption laws. A better term would be "embryo transfer" or "donation". By comparison, surrogacy statutes are a better fit and use better language, since they refer to "intended parents". This allows the use of pre-birth and hopefully pre-impregnation contracts that are otherwise not allowed in adoption cases. Some states have already enacted legislation to deal with this unique circumstance. The following is a summary of some of the provisions in different states that address these issues:

  • In California, Cal. Health and Safety Code §125315 requires health care providers to provide infertility patients with information to make an informed choice regarding how to dispose of any human embryos remaining after fertility treatment. 11
  • In Florida, Fla. Stat. Ann. §63.212, which relates to pre-planned adoption agreements including the use of "fertility techniques" and discusses embryo adoption. 12 In addition, Fla. Stat. Ann. §742.13 addresses the determination of parentage and refers to IVF transfers. 13
  • In Louisiana, La. Rev. Stat. Ann. §9:126 defines an "in vitro fertilized human ovum" as a biological human being that is not the property of the physician or the facility. Under this measure, such a physician acts as the temporary guardian of the in vitro fertilized human ovum until adoptive implantation occurs if the in vitro fertilization parents fail to express their identity. Under La. Rev. Stat. Ann. §9:130, an in vitro fertilized human ovum is a juridical person that cannot be owned by the in vitro fertilization parents, who owe it a duty of care. Fertilization parents can also renounce their parental rights by a notorial act allowing the fertilized human ovum to be available for adoptive implantation.
  • In Ohio, Ohio Rev. Code Ann. 3111.97 defines parental rights in embryo donation and adoption. 14 Amended House Bill 102 in Ohio amends §3111.03 and §3111.97 of the Ohio Revised Code [check this for accuracy please—since it could be a health and human services or other code] to clarify parentage of children born as a result of embryo donation. This law provides that a woman giving birth to a child born as a result of embryo donation shall be treated in law and regarded as the natural mother of the child and the child treated in law and regarded as a natural child of that woman. A husband to this woman is treated as the natural father and the child is treated as a natural child that husband. It also provides that a donor is not treated in law or regarded as a parent of a child born as a result of embryo donation, and the donor has no parental responsibilities and no right, obligation or interest with respect to a child resulting from the donation.
  • In Oklahoma, Okla. Stat. Tip. 10. §554 considers children born as a result of in heterologous oocyte donation for all legal purposes to be the same as a naturally conceived and legitimate child of the husband and wife. In addition, Okla. Stat. Tip. 10. §555 provides that an oocyte shall have no right with respect to a child born from such donor, and §556 even authorizes embryo donations and transfers, but requires a certain consensus in confidentiality.
  • In Virginia, Va. Code §53.2-1255 defines parental rights related to embryo adoption and §20-158(3)(B) clarifies the legal parentage of a child conceived after death or divorce from a spouse. A 1989 case, York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989) gave a couple property rights to their frozen embryos. A prior case had attempted to characterize embryos as persons or property, citing Roe v. Wade as authority for "concluding [that] the word ‘person, as used in the Fourteenth Amendment, does not include the unborn.'" 15 Contrasting this with Davis v. Davis [cite] which accorded preembryos status in ‘an interim category that entitled them to special respect because of their potential for human life. 16
  • In Wyoming, Wyoming Code §14-2-401, et seq. defines "assisted reproduction" to include the donation of embryos and transfer of embryos.

Under current adoption law, pre-birth agreements are not typically honored by courts. Unless there is a way to obtain a consent decree with a judgment in favor of the intended parents, it seems that pre-birth agreements are not the solution to the dilemma that arises. Because many adoption laws require a waiting period after the birth of the child, there can be implications regarding who can legally consent to medical treatment for the child born to a mother as a result of embryonic donation. The disparity between caselaw and the state statutes highlights the lack of comprehensive federal regulation.


The inconsistent treatment of embryo transfer from state to state can lead to other legal dilemmas. For example, a state that does not recognize or define the term embryo transfer might treat the embryos as property. In such a case, it is unclear what role the genetic donors play, let alone the intended parents. Has a state that has not addressed this deliberately chosen not to create a legal relationship between the intended parents and the child? Would a transfer that occurs from a state not recognizing this relationship into a state that does have any effect, if somehow the state not recognizing this transfer obtains jurisdiction? Does this have to be a bifurcated process, as once the pre-birth agreement is done as an embryo transfer a second agreement in which parental rights are surrendered is required? One must also examine how a child is defined and at what gestational age to determine when abandonment or desertion of this child can occur.

As this article has demonstrated, because reproductive technology in this country is unregulated, many difficult questions still remain to be answered.

1 Robin S. Levine, a partner in Secrest Wardle, has been registered before the United States Patent and Trademark Office since 1990. Ms. Levine has been an Assistant State’s Attorney, a corporate attorney, and in private practice in a variety of areas. Some of the areas include patent preparation and prosecution, environmental law, medical malpractice and insurance defense, and in juvenile law. Before returning to private practice, Ms. Levine was an Assistant State’s Attorney in Champaign County, where she specialized in juvenile abuse and neglect cases. In addition to her Juris Doctorate, Ms. Levine has a Masters in Chemistry.
2 See "A Surplus Of Embryos, What Should Happen With Extra Embryos?" available at http://www. cbsnews.com/stories/2006/02/09/60minutes/main1300667.shtml (visited on October 18, 2006).
3 Id.
4 See http://www.snowflakes.org.
5 See http://www.pbs.org/wnet/religionandethics/week66/p-cover.html (visited on November 23, 2006).
6 See http://www2.unescobkk.org/eubios/EJ64/Ej64H.htm (visited on November 13, 2006).
7 Respect for Human Life, by the Congregation for the Doctrine of the Faith (issued February 22, 1987).
8 See http://beliefnet.com/story/145/story_14537_1.html (visited on November 14, 2006).
9 See http://jme.bmj.com/cgi/content/full/31/4/215 (visited on November 14, 2006).
10 Id.

Section 125315(a) of the Cal. Health & Safety Code provides that:

A physician and surgeon or other health care provider delivering fertility treatment shall provide his or her patient with timely, relevant, and appropriate information to allow the individual to make an informed and voluntary choice regarding the disposition of any human embryos remaining following the fertility treatment. The failure to provide to a patient this information constitutes unprofessional conduct within the meaning of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.


Section 63.212(1)(h), entitled, "Prohibited acts; penalties for violation," provides in relevant part that:

It is unlawful for any person: [¶] * * * [t]o contract for the purchase, sale, or transfer of custody or parental rights in connection with any child, in connection with any fetus yet unborn, or in connection with any fetus identified in any way but not yet conceived, in return for any valuable consideration. Any such contract is void and unenforceable as against the public policy of this state. However, fees, costs, and other incidental payments made in accordance with statutory provisions for adoption, foster care, and child welfare are permitted, and a person may agree to pay expenses in connection with a preplanned adoption agreement as specified below, but the payment of such expenses may not be conditioned upon the transfer of parental rights. Each petition for adoption which is filed in connection with a preplanned adoption agreement must clearly identify the adoption as a preplanned adoption arrangement and must include a copy of the preplanned adoption agreement for review by the court.


Section 742.13 provides definitions including

(1) "Assisted reproductive technology" means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.

(2) "Commissioning couple" means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.

(3) "Egg" means the unfertilized female reproductive cell.

(4) "Fertilization" means the initial union of an egg and sperm.


Ohio Rev. Code Ann. 3111.97 provides in part:

A woman who gives birth to a child born as a result of embryo donation shall be treated in law and regarded as the natural mother of the child, and the child shall be treated in law and regarded as the natural child of the woman. No action or proceeding under this chapter shall affect the relationship. If a married woman gives birth to a child born as a result of embryo donation to which her husband consented, the husband shall be treated in law and regarded as the natural father of the child, and the child shall be treated in law and regarded as the natural child of the husband. A presumption that arises under division (A)(1) or (2) of section 3111.03 of the Revised Code is conclusive with respect to this father and child relationship, and no action or proceeding under this chapter shall affect the relationship.

If a married woman gives birth to a child born as a result of embryo donation to which her husband has not consented, a presumption that arises under division (A)(1) or (2) of section 3111.03 of the Revised Code that the husband is the father of the child may be rebutted by clear and convincing evidence that includes the lack of consent to the embryo donation.

15 [Provide a pinpoint footnote here for this specific cite—by listing the case and the page in which the cite appears (such as Doe, 7 F. Supp. 2d 1, 3].
16 Doe v. Irvine Scientific Sales Co. Inc. 7 F. Supp. 2d 737 (E.D. Va. 1998).