In turning to assisted reproductive technology to build their family, such as through in-vitro fertilization (IVF) or surrogacy, individuals are creating embryos, either with their own genetic material or with third party egg or sperm. The embryos may be genetically tested once created and then are cryopreserved pending the results and future use.  If you are creating more embryos than you intend to use, which is common practice, families must make a future plan to dispose of these stored embryos – known as Embryo Disposition.

CREATE A PLAN FOR UNUSED EMBRYOS

Upon creating or receiving the embryos at the 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. The fertility clinic will require a disposition plan of how you wish to dispose of any remaining stored embryos before creating, testing, and storing embryos.  Here are the general options in embryo disposition:

1.    Transferring ownership to one of the two parties that originally created the embryos

2.    Donate to another party for third party reproduction

3.    Donate to science or medical research

4.    Thaw and destroy

In addition to families choosing on their own to dispose of frozen embryos, Embryo Disposition will often occur based on certain life events, such as death, divorce, separation, after an agreed upon time frame, or for other reasons such as nonpayment of storage fees. One option for embryo disposition is embryo donation.

DONATING EMBRYOS

Embryo donation allows families to share the embryos that they are not going to use with other families to use in their own family building.   It allows the recipients - which are the intended parents - to receive embryos to carry themselves or use with a gestational carrier, and to have background information on the embryos and any children already born.  Embryo donation is occurring through clinics, where the provider connects families or provides unused embryos to intended parents.  Recently, families have been finding each other directly 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 resource that may be de-identified.   This direct donation can be done through connections online on social media, or an embryo matching agency like Empower with Moxi or Embryo Connections.   Though often referred to as “embryo adoption,” embryo donation does not have a legal adoption at the time the donors transfer the embryos to the intended parents, and an actual adoption may be required after birth of the child, depending on the state. Depending on the states involved and what is needed to establish parentage, an adoption may occur once a child is born, though this is not part of the embryo donation process. Learn more about how embryo donation is not adoption here.

The parties will enter into a Donor Agreement to set the terms and expectations of the donation, legal rights, and future communication. It is important to make sure the embryos are free to be donated based on any prior agreements, such as if the embryos were originally created with any donated genetic material, such as eggs or sperm from an anonymous bank, donor, or fertility clinic.  For example, if an egg donor was used to create the embryos, make sure the contract signed with the known donor,, egg donor matching program, or egg bank allows you to re-donate any created embryos from the material, before agreeing to do so. Learn more about contracts in assisted reproduction here.

In any donation of genetic material, it is paramount to consider that the child that will be a donor conceived person. It is important to discuss any future aspects that could impact the child, such as access to medical and social background information and contact between the parties and any genetic siblings.

LEGAL DOCUMENTS FOR EMBRYO DISPOSITION

Based on the disposition plan that you make and your particular family arrangement, it is recommended that other documents confirm the plans for disposition, especially if there are two parties involved in creating and storing the embryos. This may include:

1.    Donation Agreement

2.    Prenuptial or Postnuptial Agreement

3.    Embryo Disposition Agreement

4.    Estate Planning Documents

Because embryos creation, storage, and disposition is not regulated by federal law or a central database, it is not known exactly how many embryos there are in the U.S.  It is estimated there are over a million embryos that are stored, and may be available for donation.  There are also stored embryos that are in limbo, which could be due to an unclear disposition plan, not paying storage fees which can be upwards of $500 – $1000 per year, or being stuck in litigation during a divorce.   With the recent Alabama Supreme Court case finding embryos to have “personhood’ rights, many are considering a plan for their unused embryos. As laws in this area are constantly changing, it is important to check with a specialized attorney in your state.  

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