Marital Property

Embryo Adoption

By Tracy Miller and Karen Platt

Many couples seeking to have a baby, but struggling to conceive often turn to In Vitro Fertilization, commonly referred to as IVF.  This is a process of fertilization where a woman’s extracted eggs are fertilized by a man’s sperm sample in a laboratory dish, and then implanted into the woman for the growth.  Because more embryos are typically created than are used in the IVF process, each year thousands of embryos are left over. Although many unused embryos are destroyed, many more remain frozen and in limbo at fertility clinics. Embryo donation, or sometimes referred to as embryo adoption, is a type of assisted reproduction technology (“ART”) that affords these unused embryos a chance at life, and a baby for families that have been otherwise unable to conceive. 

With embryo adoption, there are a host of legal implications that can arise between the donor family and the receiving family.

With embryo adoption, there are a host of legal implications that can arise between the donor family and the receiving family.

Credit: Tetra Images via GettyImages

The donation or adoption of an embryo is often done without compensation, and provides a woman with an opportunity to have the embryo implanted. Herein lies one of the many appeals of embryo donation, the opportunity for the adoptive mother to carry and bond with the child in her womb. However, there are a host of legal implications that arise between the donor family and the receiving family. The laws regarding embryo adoption vary from state to state, if they even exist, and often times are governed by laws for the transfer of property or the adoption of a child. 

Embryo adoption, as with the adoption of a child, can be open, whereby the donors know the family receiving their embryo, or closed, in which the donors and recipients never meet. The process for embryo adoption is typically addressed through the use of legal agreements that relinquish the donors’ parental rights and responsibilities, and transfers them to the recipients. Recipient families are directed to seek attorneys to draft these agreements. The fertility clinics often provide guidance in drafting these agreements, as they not only want terms to relinquish the donors’ parental rights, but also terms that hold the clinic harmless should any legal issues arise in the future between the parties, or within one party.

It is not unheard of during the emotional process of assisted reproduction that the recipient family encounters marital issues resulting in one party seeking a separation or divorce. Typically this would foreclose the embryo adoption. However some fertility clinics have established terms to allow embryo adoption to proceed with only one spouse. This is most often observed with the wife wanting to proceed with the process absent the husband. In the state of Maryland, as in many other states, as child born during a marriage is presumed to be a child of the husband and wife; although this is a rebuttable presumption. Some fertility clinics proceed with the process of embryo adoption if a notarized affidavit by the wife attesting, in part, that she will hold her husband harmless from any responsibility associated with the embryo adoption or resulting child.  This legal document has permitted many wives to proceed with becoming a mother in the face of a pending divorce. As more and more families utilize assisted reproductive technologies each year, and varied legal issues continue to rise, our legislatures will be forced to provide more direction for the intersectionality of family law, property law, contact law and other areas of the law implicated by ART.

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Tracy Miller

Esq., Columbia, MD

Tracy Miller Law, LLC

Vice-Chair, ABA Section of Family Law Marital Property Committee

Karen Platt

Esq., New York, NY

Pryor Cashman LLP

Chair, ABA Section of Family Law Marital Property Committee