Five Things to Know About Embryo Adoption

May 17, 2022

With changes in technology and modern medicine, people are turning to various ways to build their families through assisted reproductive technology, such as IVF, surrogacy, and egg, sperm, or embryo donation, commonly referred to as embryo adoption. Recently, there has been a trend for families to find each other to donate embryos – those which have embryos they are not planning to use and match and donate to another family seeking an embryo – which creates a more personal connection rather than using a bank. People may find each other directly through their clinics or social media, or may match through an embryo matching agency.

Because it is not regulated, it is not known exactly how many embryos there are in the U.S., and it is estimated there are upwards of 600,000 – 1,000,000 embryos available for donation. This could be due to people not being sure what to do with them, not paying their storage fees which can be upwards of $500 – $1000 per year, or being stuck in litigation or other reasons.

Embryo donation is a great option for families looking to share the embryos that they are not going to use, and for intended parents to receive embryos directly from another family and have background information on the embryos and any children already born.

Here are five things to know about embryo adoption or donation.

  1. It’s not an adoption at all.

Embryo donation is a donation of genetic material from a donor and their spouse if they have one, giving their stored embryos to the intended parents, who plan to use the embryos themselves.  The parties will enter into a Donor Agreement to set the terms and expectations of the donation, legal rights, and future communication. Depending on the states involved and what is needed to establish parentage, an adoption may occur once a child is born, though is not part of the embryo donation process. Laws in this area are constantly changing and it is important to check with a specialized attorney in your state.

  1. There will be other contracts to sign.

When working through an embryo donation situation, it is likely there are various documents to review and sign with the clinic and any agency or other third-party involved. For example, the donors may have to sign documents to release the embryos from their clinic or storage facility, and the intended parents will have to sign documents to accept the embryos and confirm a plan for embryo disposition. There may be transportation services provided by one of the clinics or storage facilities, or a third-party transport, and if an agency is involved they will likely coordinate such aspects.

  1. Lawyers and therapists will be involved.

The donors and the intended parents will work with their own independent attorneys to negotiate a Donor Agreement and provide legal clearance for the clinic to release the embryos to the intended parents. Your lawyer can also review the other contracts you will be signing, such as with the fertility clinic, cryobank that stores the material, or the agency.  Most fertility clinics and attorneys will also recommend the parties have a counseling session with a therapist separately and all together to discuss the genetic connection of any future children. It is common that the intended parents cover the costs of the attorneys and therapists for the parties.

  1. You’ll need to plan for embryo disposition.

Upon receiving the embryos at your fertility clinic, you will have the option to genetically test the embryos if you wish to, use an embryo for an IVF transfer, and freeze (or cryopreserve) the remaining embryos. You will have to sign paperwork with the clinic and storage facility on how you wish to dispose of any remaining stored embryos, such as due to death, divorce, separation, and include what happens due to nonpayment of storage fees. Parties may elect for one person to get them should they get divorced or pass away, and want to make sure any other documents such as a prenuptial agreement or testamentary documents match the same plan for embryo disposition.  Embryos could be donated to another family, to the clinic or bank, for science and research, or can be thawed and disposed of. 

  1. You’ll have to think about the long term.

In the donor agreement, everyone will outline the expected privacy and any type of communication they would like in the future, and the likelihood that any genetic relatives may finds each other, such as through at-home DNA testing kits. The children contemplated in the Donor Agreement are not parties to the agreement.  If the embryos were originally created with any donated genetic material, such as eggs or sperm from an anonymous bank, there may be other unknown genetic siblings. Parties may also agree to communicate certain genetic or medical information that a party may learn in the future.  It is important to discuss these aspects with a counselor and with your attorney prior to entering into a Donor Agreement.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.