More efficient than in vitro fertilization and cheaper than traditional adoption, embryo adoption, which also provides parents with the experience of carrying a child, is becoming more popular. But our legislature is still struggling with serious legal issues surrounding the practice.

A human embryo that's about five weeks old. (Photo: Public Domain)

It sounds like Brave New World, but it’s a story from Good Housekeeping: Six children conceived at the same time, from the same genetic material, but carried to term over three pregnancies by three different women to be raised by three sets of parents. The three sets of twins are the legacy of one couple’s commitment to in vitro fertilization (IVF), and two others’ willingness to be pioneers in the remarkable process of embryo adoption.

A fertility specialist had been able to harvest two dozen eggs from the genetic mother after she took a course of hormones. When the eggs were mixed with her husband’s sperm, 18 embryos were created. The couple transferred four to the mother’s uterus—two did not take, but the others became a pair of non-identical twins, a boy and a girl. The couple was overjoyed, their family complete.

A few months before the twins’ birth, the clinic sent the couple a curious letter: What would they like to do with the 14 remaining embryos? They could direct their embryos to research, destroy them, keep them frozen, or allow them to be adopted. Because their intent had been to create embryos to become children, they explained, they would explore the possibility of allowing other couples to adopt—but they wanted to choose the parents themselves.

The trust between the genetic parents and the two couples to whom they gave their embryos was especially critical because they couldn’t count on a predictable legal framework to govern the embryo adoption or regulate parental rights over the children who might result. The absence of law in this area is the major obstacle to the growth of embryo adoption as an alternative to IVF and traditional adoption.

Obvious at is seems that embryos deserve some standing as potential lives, states generally treat them as personal property.

THE FIRST TEST TUBE baby, Louise Brown, was born in 1978. Now, one percent of U.S. babies are born through the use of assistive reproductive technologies. IVF is growingly popular among couples without fertility issues. The Centers for Disease Control (CDC) reported in 2010 that 6.7 million American women aged 15-44 were infertile, but 7.4 million had used “infertility services.” Many of those who successfully undergo IVF end up with extra embryos, frozen for future use if the first transfer is unsuccessful or the couple decides to have more children. In 2006, news stories estimated between 400,000 and 500,000 frozen embryos were in storage across the U.S.; some proponents of embryo donation claim that there are at least 600,000 now.

As the use of IVF grows, so, too, will the number of embryos in storage. Physicians and patients reduce costs and patient discomfort by minimizing the number of procedures performed and optimizing the results of each. Put simply, the physicians try to harvest as many eggs as possible, then create as many embryos as possible. At the same time, fertility specialists are moving toward a consensus that the optimal number of embryos to transfer is just one. Early recognition of these trends led to the emergence of embryo adoption. The year Louise Brown turned 20, another couple welcomed America’s first “snowflake baby,” the term advocates of embryo adoption use to describe the children born from this practice.

EMBRYO ADOPTION HAS BEEN marginalized, but it may–and should–become more popular. President George W. Bush began an initiative to promote embryo adoption through the Department of Health and Human Services (HHS). President Obama continued the program. To date, Obama has signed off on the use of $13.4 million to promote embryo adoption—bringing the total U.S. federal funds used for this purpose to over $24 million. The program is administered by HHS, but the department doesn’t carry out the program’s mission to “educate Americans about the existence of frozen embryos ... available for donation/adoption” directly: The office makes grants to agencies and clinics that create embryo adoption programs. Its grantees have facilitated embryo adoptions resulting in 630 infants.

The early proponents and recipients of “frozen embryo adoption awareness” grants were conservative Christian activists and adoption agencies. They tended to be strongly pro-Christian, anti-single parent, and anti-gay. But the newest grantees are less polarizing and more transparent. The National Embryo Donation Center (NEDC), although endorsed by the Christian Medical and Dental Association (CMDA), uses inclusive language. A medical practice, Boston IVF, received a $1 million grant to make embryo donation a possibility for more of its patients, while RESOLVE, an adoption agency, makes a point of saying that they support unequivocally a couple’s right to choose what to do with their embryos.

As new, more moderate advocates have begun promoting embryo adoption, the process has reached both parents with embryos already in storage and would-be parents contemplating creating embryos. Not all will choose to give their embryos away to be adopted, but an increasing number are open to the possibility—and even those who don’t give their embryos up for adoption may think about donating them to research.

EMBRYO ADOPTION IS DEPICTED as ineffective and ideological. It need not be either. According to the NEDC, the success rate for adopted embryo transfers—involving a healthy embryo and an adoptive mother with no medical obstacles to pregnancy—may be nearly 50 percent, higher than many clinics’ overall IVF success rates. The embryo adoption movement is no longer primarily religious. Persuading would-be parents to adopt embryos instead of creating new embryos averts the creation of “extra” embryos and gives extant frozen embryos a chance to become children, an objective good if you believe that life begins at conception. But embryo adoption has other major advantages for single parents and couples who need IVF to conceive.

Many Americans prefer pregnancy to adoption, for the experience of carrying a child and giving birth, having the opportunity to bond immediately—and for more pragmatic reasons. Pregnancy, and even surrogacy through IVF, allows parents to conduct genetic prescreening and exercise control over a child’s in utero environment and birth. Adoption seems riskier: The prevalence of fetal alcohol syndrome, for example, is “between nine and sixty times higher” among adoptees and foster children. Parents’ concern may now legitimately extend beyond fetal exposure to drugs, alcohol, or other substances, as research gives us reason to worry about how maternal behavior affects childhood development.

IVF is expensive, often cripplingly so. Only 10 percent of insurance plans cover IVF, and the average cost of a cycle of IVF in the US is $12,400. Those open to adopting will still encounter financial obstacles. Most parents prefer to adopt an infant—and most such adoptions are private and cost between $30,000 and $34,000, depending on whether parents use an attorney or agency. While adopting from foster care may cost less than $3,000, the process may be lengthy as few infants are available.

By contrast, embryo adoption is affordable. The total cost of embryo adoption and transfer may be just $2,500 to $4,000. Affordability means that parents may be able to attempt an embryo transfer earlier, with a higher likelihood of success, rather than delaying until they are able to finance more expensive fertility treatments. It also means parents may be able to afford more than one attempt at implantation, rather than pinning hopes on a single procedure. The potential complications associated with embryo donation are the same as those attached to other fertility procedures. The potential threat to genetic diversity (and probability of “accidental incest”) is higher with sperm donation than embryo donation, which is not geographically concentrated.

Embryo adoption offers a viable alternative to invasive fertility procedures or adoption proceedings—and a compromise for members of the subset of parents who cannot conceive naturally but prefer pregnancy to adoption. Those who would not otherwise get to become parents have that opportunity; children who would otherwise have remained frozen are given the chance to develop and lead full lives.

THE PROMISE OF EMBRYO adoption is limited by the questions that remain surrounding legal status. Obvious as it seems that embryos deserve some standing as potential lives, states generally treat them as personal property. Just eight states have legislation regulating embryo donation. In most states, the birth mother is a child’s legal mother; if she is married to a man, her husband is the child’s father. Where no superseding embryo-related law exists, a child who develops from an adopted embryo legally belongs to her birth parents.

Until legislators establish embryos’ legal standing—or lack thereof—judges and parents alike are operating in a legal vacuum.

Laws that treat embryos as property conflict with laws barring violence against “the unborn.” The federal successor to “born-alive” laws, the Unborn Victims of Violence Act of 2004 (UVVA), amended the United States Code “to protect unborn children from assault and murder, and for other purposes.” The perpetrator need not know his victim was pregnant, nor have intentionally caused harm to the fetus, to be charged. Those perpetrators who knowingly attempt to harm a fetus, however, are charged with “intentionally killing or attempting to kill a human being,” an offense that carries stiffer penalties. The law grants unborn children an attenuated form of legal standing. When Senator John Kerry voted against it, he cited concerns about its interaction with abortion rights, stating, “the law ... provide[s] that a fetus is a human being.” Kerry’s fears have not been realized: Most federal and state laws exempt abortion from prosecution.

A number of states don’t specify whether feticide laws protect non-viable fetuses, but others specify when the product of conception acquires rights. The word “embryo” appears in Idaho, Michigan, Tennessee, and West Virginia laws; Alabama, Arizona, Georgia, Kansas, North Carolina, and Utah use the “any stage of development” definition for “unborn child.” (Alabama’s statute applies “regardless of viability.”) Other states use “quickening”—the first time a pregnant woman feels a fetus moving—as the critical milestone for fetal development, which takes place as early as 13 weeks after the woman’s last period.

The conflict between the default of treating embryos as property and the imperative to grant them special consideration has been limited to one particular type of legal proceeding: embryo custody disputes, cases in which ex-partners battle over the possession, transfer, or destruction of embryos. Property law encourages courts to treat embryos like any other asset; abortion law and criminal laws don’t address the status of pre-implantation embryos, although statutes targeting assailants who harm a fetus regardless of viability suggest destroying embryos without consent should be a crime. Adoption law potentially provides a basis for determining that genetic parents should have special, superseding rights over embryos, as birth mothers have over infants in adoptions.

Difficult as the question of embryo custody is, the issues surrounding the children embryos become—and accompanying parental rights and responsibilities—will be even harder to resolve. The laws we have don’t address whether transferring ownership of an embryo terminates genetic parental rights; conversely, they can’t answer how firm the rights of birth parents are over children not genetically theirs outside of surrogacy. While contract law seems an obvious solution, courts have rejected contracts in sperm donation cases. For example, a sperm donor may still have to pay child support, regardless of a contract with the birth parent. If a court tried to apply similar restrictions to embryo adoptions, that could mean genetic parents who transfer embryos remain financially responsible for the children they may become—a position more precarious than that of genetic parents who give children up for adoption at birth.

American lawmakers’ reluctance to define an embryo’s legal status stems not just from the internal contradictions of existing laws—property versus criminal, abortion versus adoption—but a broader reluctance to place legal limits on fertility medicine. While using pre-implantation genetic diagnosis (PGD) to select for gender is illegal in Canada, China, India, and the United Kingdom, sex selection is legal in the United States—and it’s a $100 million industry. Although peer countries—Italy and Germany, for example—limit the number of embryos that can be transferred in a single procedure to protect mothers and children, the U.S. has not chosen to do so. The failure of the fertility industry’s efforts at self-regulation in the United States has spurred ethicists to call for legal regulation, to no avail.

The solution proposed by Americans United for Life (AUL), representing the original, conservative advocates of embryo adoption, is to extend adoption law at the state level to apply to the transfer of embryos. Their proposal, however, veers too far from the current default—and too close to usurping abortion law—to be palatable to legislators. The better option is to define and protect the right of contract in embryo adoptions, permitting individuals and couples to reach enforceable agreements predicated on mutual beliefs about the legal status of embryos.

However it goes about it, a legislature is the only body that can resolve the questions implicated in embryo adoption. Until legislators establish embryos’ legal standing—or lack thereof—judges and parents alike are operating in a legal vacuum. Few judges are up to the task of carving out a new status for embryos as both property and potential people, but fewer still will get the opportunity to do so, as long as parents know embryo adoption is subject to legal uncertainty. The full promise of embryo adoption cannot be realized until the law catches up to technology to protect the rights of parents in this brave new variation on adoption.