Introduction
Assisted reproductive technology (ART) has become a common part of modern American life. A third of American adults have either undergone some form of fertility treatment or know someone who has.[1] While few Americans bat an eye at the idea of a child born as a result of sperm donations or in vitro fertilization (IVF), the idea of a child born as a result of an embryo donation is still unusual to many Americans.[2] Children born as a result of embryo donations have no genetic ties to the person who gives birth to them, but typically that person (and their partner or spouse, if applicable) intends to parent the child. The number of children born as a result of embryo donations is increasing.[3] Between 2007 and 2016, the number of ART cycles performed using donated embryos more than doubled.[4] Similarly, the number of live births resulting from embryo donations more than doubled from 2004 to 2014.[5] In spite of this trend, few states have laws that regulate embryo donations; fewer still have laws that permit any flexibility in establishing a relationship between donors, prospective parents, and potential children. Many states use the broad language of the Uniform Parentage Act,[6] which simply states that “a donor is not a parent of a child conceived by means of assisted reproduction.”[7] The state statutes that do exist often reflect their origins in the anti-abortion movement by using the language of embryo “adoption,”[8],[9],[10] lending personhood to the embryo. They restrict embryo recipients to married couples[11] or use the language of “husband and wife,”[12] and these states have default provisions stating that donors give up all parental rights[13],[14],[15],[16] and disallow negotiations or contracts between donors and recipients. The most restrictive state statute is in Louisiana, which confers juridical personhood onto embryos, severely limiting the choices that people who have created an embryo through IVF can make about what to do with that embryo.[17] In each of these states, the anti-reproductive justice movement has been years and in some cases decades ahead of state legislatures. They have used embryo donation laws to promote fetal personhood and an anti-abortion view of conception, pregnancy, and fetal life.
States that care about reproductive justice need to take a proactive, not a reactive approach to embryo donation laws. Rather than wait to address the issue of embryo donation through a patchwork of caselaw and judicial decisions, they must pass statutes that establish a holistic, reproductive justice-oriented framework governing embryo donation. The ideal statute should center reproductive autonomy, balancing the interests of donors and the wishes of prospective parents, with the best interests of any children born as a result of the embryo donations.
Part I of this article will cover the background of embryo donations, briefly explaining how excess embryos come to exist and the different options people have for the disposition of excess embryos. This section will also look into the Christian underpinnings of the embryo donation movement and how it continues to influence clinics, agencies, and lawmakers to this day.
Part II will explore current laws governing embryo donations, comparing their passage over time. While all of these laws are in “red” states, or states that tend to be conservative and oppose abortion access, some of them are more respectful of the reproductive autonomy of donors and recipients with respect to embryo donation. I hypothesize that as embryo donation has become distanced from its Christian roots and been seen more as a form of ART, laws that have been passed have conformed more with ART norms rather than the Christian religious norms of the earlier laws.
Part III of this article examines the American Bar Association’s 2019 Model Act Governing Assisted Reproductive Technology, which contains only a sparse section governing embryo donation. The article then considers whether these proposals truly address the issues raised by the current laws on embryo donation or instead exacerbate the uncertainties of the existing piecemeal state laws.
Finally, in part IV, I propose model law governing embryo donations. I suggest that, while embryo donation should in no way convey personhood onto the embryos, these donations do sit on a spectrum between traditional gamete donations and adoptions. Laws governing embryo donations should borrow from laws governing both traditional gamete donations and open adoptions to allow more flexibility for embryo donors and recipients to negotiate for the parties’ wishes in a way that will be legally enforceable.
I. Background
Medical Information
In the second half of the 20th century, scientific advancements expanded the options for conception available to prospective parents.[18] One of the most significant advancements was IVF, in which multiple eggs are harvested and fertilized outside of the body to create embryos (sometimes also called “pre-embryos” at this stage). These embryos can be implanted in a prepared uterus or cryogenically frozen for later use.[19] IVF is now the most prevalent form of ART, which the Center for Disease Control and Prevention defines as any fertility treatment where eggs or embryos are handled in a lab (a definition that excludes sperm donation).[20] IVF allows prospective parents additional control over conception and childbirth. Prospective parents are able to test the embryos for genetic conditions or diseases, to undergo necessary health procedures such as chemotherapy without sacrificing the potential to become a parent, or to choose when to become pregnant. LBGTQ+ people, people who are otherwise unable to conceive without assistance, and single people are able to have children through IVF. However, IVF can also produce excess embryos. Due to the risk that some IVF cycles might not be successful and the high cost of multiple IVF cycles,[21] clinics often fertilize far more embryos than a prospective parent would ever transfer to their uterus.[22],[23],[24] In addition, early IVF techniques often called for the transfer of multiple embryos to a prospective parent’s uterus, which led to increased rates of multifetal pregnancies, preterm birth, and the use of selective reduction.[25] However, recent technological advances have led to increased IVF success rates with fewer embryos transferred.[26] These technological advances, without a change in the number of harvested eggs and fertilized embryos, has led to a growing number of unused embryos.[27],[28] The possessors of these embryos have options: freeze and store the embryos for as long as the clinics will allow—theoretically, many clinics will allow indefinite storage, at a cost averaging $500 to $1,000 per year[29]; destroy the embryos; donate them for research (in most but not all states); or transfer possession of the frozen embryos to other prospective parents as an “embryo donation.”[30] People choose different options for the disposition of excess embryos based on religious, moral, emotional, and financial factors. However, embryo donation received significant financial and structural support from anti-abortion politicians and religious communities in the early 2000s, contributing to the passage of state laws governing “embryo adoption.”
Christianity and Embryo “Adoption”
The embryo “adoption” movement was heavily promoted in the 2000s by the Christian anti-abortion movement, which believes that life begins at conception and that embryos are persons.[31],[32],[33] It rose in popularity due to religious objections to destroying embryos, donating them to research, or letting the embryos remain in storage indefinitely.[34] President George W. Bush, a staunchly anti-abortion politician, allocated one million dollars per year in US Department of Health and Human Services (HHS) grants to promote “embryo adoption” in 2002[35],[36]; in 2006, he vetoed a bill to expand stem cell research and promoted embryo “adoption” once again, saying that embryo donation is “life-affirming” and “[e]very embryo is unique and genetically complete, like every other human being.”[37] These quotes show the clear connection between the language of “embryo adoption” and the movement for “fetal personhood,” which argues that fetuses—and embryos—are full persons with equal rights to life. Carried to its logical conclusion, this movement would mean that no pregnant person has a right to an abortion under any circumstances; that any person who has a miscarriage could be prosecuted if they put the fetus “at risk of harm,” a standard that is already being applied to marginalized pregnant people with devastating consequences[38]; that a third party who causes harm to a fetus could be prosecuted not under specific fetal endangerment or fetal homicide laws but under general homicide laws that carry prison sentences of life without parole and even capital punishment; and that any fertility clinic could be liable not just for property damage but for criminal charges if technological malfunctions lead to the loss of embryos.[39] This conferral of personhood onto an embryo has far-reaching implications and is clearly part of the anti-abortion movement. The terminology of “adoption” poses the threat of additional screenings or interactions with the state through the family regulatory system.[40] Classifying embryos as persons and embryo donation as a form of adoption could subject prospective parents to potentially intrusive state interventions.
That said, some donors and prospective parents prefer the term “embryo adoption.” Donors might prefer it as a way to imply the possibility of an ongoing relationship between the donors and any potential children.[41] Some donors or prospective parents might prefer it as a result of religious beliefs about when life begins.[42] Others may not have specific religious beliefs but simply find the term “donor” to be impersonal.
Fertility practitioners have expressed ethical quandaries about the growing number of excess cryopreserved embryos.[43] While reproductive health practitioners reject the anti-abortion “personhood” framework, they do acknowledge the potentiality of the embryos to become persons[44]—a potentiality that courts have likewise acknowledged in recent years.[45] Some clinicians, recognizing the number of excess embryos that remain in storage or are destroyed due to changing IVF practices, have worked to promote embryo donation.[46] These doctors’ embryo donation programs often work to expand embryo donation beyond the Christian anti-abortion communities, but they still exist within the context of federal funding programs and state laws enacted largely as part of a conservative movement.[47]
Beyond the semantics of “adoption” versus “donation” and the underlying meaning they convey, the religious history of embryo donation continues to play an important role. Embryo donors are able to place conditions on their donations, often selecting prospective parents based on specific traits in an attempt to find a “good fit.”[48] Embryo donors who work with Christian “embryo adoption agencies” are able to restrict their adoptions based on discriminatory factors like sexuality, religion, marital status, or race.[49] Some fertility clinics that receive federal funding facilitate embryo donations and likewise allow donors to place conditions on recipients as a way to encourage donations.[50],[51] These clinics and agencies tend to encourage donations by allowing donor preferences, which leads to increased discrimination. There are no statutes or case laws limiting the ability of embryo donation agencies or clinics to permit discriminatory donations. Instead, most state statutes—like the federal government policies on embryo donation—seem to have emerged from the context of Christian anti-abortion promotion of “embryo adoption.”
II. State Laws Governing Embryo Donation
Few states have passed laws governing embryo donation. Although embryo donations are treated as property transactions, courts have recognized embryos as “occupy[ing] an interim category that entitles them to special respect because of their potential for human life.”[52] All of the state laws that exist focus on this potential for human life, governing the future parental rights of donors and recipients with respect to children born as a result of embryo donations. In addition, some embryo donation laws explicitly or implicitly limit who can receive embryo donations, whether excess embryos can be donated to research or only to other prospective parents, and whether excess embryos can be destroyed. All of the states that have passed laws governing embryo donation are states that also limit rights and access to abortion.[53] In fact, every one of them will ban abortion if Roe v. Wade is overturned.[54] The existing embryo donation laws primarily reflect a conservative anti-abortion, pro-fetal personhood movement rather than a true reproductive justice movement that prioritizes the interests of embryo donors, recipients, and any children who may be born as a result of the donations. Embryo donation laws that have been passed recently, with the background of an increasing number of children being born as a result of embryo donations, reflect those interests more fully than laws passed earlier.
The earliest—and most restrictive—law governing embryo donation is Louisiana’s embryonic personhood statute, which first and foremost conveys juridical personhood onto embryos prior to implantation into the uterus.[55] The statute further forbids the destruction of embryos, including cryopreserved embryos,[56] or the use of embryos in research.[57] Finally, the Louisiana statute states that “[a]n in vitro fertilized human ovum is a juridical person which cannot be owned by the in vitro patients,” rejecting the property framework of embryo possession.[58] Instead, the Louisiana statute establishes “parental rights for in utero implantation,” which can be renounced through a notarized document.[59] In that event, the embryos automatically become available for “adoptive implantation in accordance with written procedures of the facility where [the embryos are] housed or stored.”[60] The donors can “renounce their parental rights in favor of another married couple, but only if the other couple is willing and able to receive” the donated embryo.[61] The donation is completed through a “notarial act of adoption and birth.”[62] Notably, the statute only permits parental rights to an embryo to be renounced in favor of another married couple, which, when the statute was passed, would necessarily have been a heterosexual married couple. This statute promotes a Christian view of life beginning at conception, where the embryo is legally enshrined as a juridical person requiring an adoption by a heterosexual married couple. The Louisiana law was passed in 1986, before IVF was particularly common and certainly before excess embryos were a common phenomenon. It was drafted and promoted by a law student at the Catholic Loyola University School of Law,[63] who continued to defend the law as protecting embryos from “great atrocities [that] have been committed in this century upon human persons with rights” “[u]nder the guise of medical research.”[64]
Other state laws are less pronounced in their anti-reproductive justice rhetoric but still rely on the language of adoption and on heterosexual norms. For example, Oklahoma refers to donors and recipients as “husband and wife” throughout its embryo donation statute; it also requires execution of a written agreement by a judge of a court that has adoption jurisdiction, which indicates that the interaction is in some way categorized as an adoption.[65] The execution of such a written agreement transfers all legal parental rights and obligations for any children born as a result of the embryo donation from the donors to the recipients, without any provisions for negotiations or contracts between the parties.[66]
Likewise, Georgia’s embryo donation law categorizes embryo donations as “adoptions”—it does so more explicitly, with the article on embryo donations included in the chapter of the Georgia Code on adoption proceedings.[67] However, in spite of this official designation as an “adoption” law, Georgia’s embryo donation law, passed in 2009, makes significant progress toward a reproductive justice model.[68] It allows the donor and the recipient to enter into a written contract prior to the implantation of the embryos relinquishing future parental rights and responsibilities; if donors and recipients do not enter into such an agreement, then recipients can file for a petition for adoption or parentage following the birth of a child as a result of an embryo donation, at which point a donor’s parental rights and responsibilities will be terminated.[69] The statutory provisions for a written contract and the permissive language, which provides for either anonymous or non-anonymous donations, might allow donors and recipients to negotiate relationships of their own choosing that could then be legally enforceable. This would be more similar to an open adoption than a traditional gamete donation. At a minimum, the statutory allowance for donors and recipients to choose anonymous or non-anonymous donations and to choose whether to terminate donor parental rights and obligations prior to or following the birth of any children allows for greater reproductive autonomy.
Tennessee’s embryo donation law, passed only a few years after Georgia’s, similarly provides the option for donors to relinquish parental rights and responsibilities to recipients prior to implantation through a written contract; it also provides the option of anonymity or non-anonymity.[70] It explicitly allows for donors to transfer their legal rights to a clinic, rather than directly to recipients, who can then transfer rights to recipients in the future.[71] This reflects the rise in embryo donation clinics during the 2000s. The statute’s provision for a written contract creates a number of default rules and presumptions, including that the donors have no rights or responsibilities for any children born as a result of the embryo donation.[72] While the statute does not explicitly state that the parties can contract around those default rules in the written agreement, the fact that the default rules are not simply provided by law implies the possibility for contracting for more open relationships between donors and recipients. The stated legislative intent is “to promote the interests of children who may be born as a result of donated embryo transfer” so that no adoption or parentage action “shall be required to create parentage in recipient intended parent.”[73] This prioritizes the interests of recipients, but it does not eliminate the possibility of a legally enforceable contract with more flexibility between donors and recipients.
Embryo donation in Florida is governed by an interesting amalgamation of an early gamete donation law from the 1990s and a later adoption law from the 2010s. The first law provides that “the donor of any egg, sperm, or pre-embryo, other than the commissioning couple or a father who has executed a pre-planned adoption agreement . . . shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.” The second law, which embryo donation clinics and agencies within Florida apply to embryo donation proceedings,[74],[75] provides an option of a pre-planned adoption agreement.[76] In this case, the donor’s parental rights and responsibilities are automatically revoked unless there is a pre-planned written agreement to the contrary; any pre-planned adoption agreements would go into effect 48 hours after the birth of any children born as a result of an embryo donation.[77] While the default rules established in the donation law assume that parental rights and obligations will rest with the recipients of the embryo, the pre-planned adoption agreement gives the flexibility to deviate from those default rules. It allows donors and recipients the reproductive autonomy to shape the relationship they want between the donors, recipients, and any children that may be born as a result of the embryo donations. In addition, since the pre-planned adoption agreement does not go into effect until after any children are born, it allows this reproductive autonomy without conveying personhood onto the embryos. While Florida’s statutory regime is fragmented, it is well-aligned with reproductive justice norms.
With the exception of Florida’s cobbled-together embryo donation regime, current state laws governing embryo donations are largely contrary to reproductive justice goals. They label embryo donation as “adoption,” connoting personhood. They indicate that recipients must be heterosexual married couples. Louisiana even limits what individuals can do with excess embryos. Reproductive justice-minded states must therefore look elsewhere for models of statutory regimes.
III. The ABA Model Act Governing Assisted Reproduction
The American Bar Association (ABA) released a Model Act Governing Assisted Reproduction in 2019,[78] replacing the previous 2008 ABA Model Act Governing Assisted Reproductive Technology,[79] which did not include any guidelines for embryo donations. Both of the model acts did include short sections stating that donors (gamete and embryo donors) are not the parents of children conceived via assisted reproduction.[80],[81] The 2019 Model Act expanded on the parental status of donors, saying that a donor and an intended parent can enter into a written agreement stating that “the Donor . . . has no property, parental, or other rights, responsibilities and claims with respect to any . . . Embryos . . . and any Child born as a result of the gamete donation”; “any Embryos . . . shall be the sole property and responsibility of the Intended Parent(s), subject to the terms of the Donor Agreement;” and that “the Donor is not a Parent of any Child conceived through Assisted Reproduction using the Donor’s gamete(s), and the Intended Parent(s) shall be the Child’s Parent(s) with all the rights and responsibilities resulting therefrom.”[82] This conforms with most of the state laws examined above, which state that the embryo donation leads to the transfer from the donor to the recipient all property rights and responsibilities for the embryo and parental rights and responsibilities for any resulting children.[83] However, as in many of those laws, the model act intends to protect donors from potential child support claims and to protect against potential custody or visitation claims from donors than it does to provide for the potential for ongoing relationships between donors and children born as a result of embryo donations. While many donors and recipients will not wish to have an ongoing relationship, the reproductive justice framework should ensure the possibility to create an agreement that allows for an ongoing relationship. Modern views of adoption understand that it’s important to allow adoptees the possibility for an open adoption and the potential to remain connected to their birth families and cultures[84],[85]; to a certain extent, the same may be true of children born through embryo donations. While the ABA Model Act does avoid the pitfalls of the state laws detailed above—describing embryo donation as “adoption” or discriminating against single or LGBTQ+ prospective parents—it does not fully subscribe to a reproductive justice model to govern embryo donations.
IV. A Reproductive Justice Model for Embryo Donation
We have now looked at state statutes governing embryo donations, many of which emerged from a Christian ethos of fetal personhood; we have also looked at the 2019 ABA Model Act that is largely responding to these laws. None of these were designed with reproductive justice as their core. What, then, would a state statutory regime governing embryo donation built around a reproductive justice framework look like? First, we have to remember the key tenets of reproductive justice: (1) reproductive bodily autonomy; (2) the right to choose whether to have or not have children; and (3) the right to raise those children that we have in safe and sustainable communities.[86] Second, we need to ask whose rights are at issue in laws governing embryo donations. The key stakeholders here are the recipients, the donors, and the potential children who may be born as a result of the embryo donation. Finally, we have to ask whether it is possible to balance those rights among those stakeholders and if not, whose rights predominate.
States seem to have prioritized the autonomy of recipients, their choice to have children, and their ability to raise any children born as a result of embryo donations in the exact same manner that they would raise children born from “traditional” biological conception. For recipients, one of the benefits of embryo donation may be the ability to have a gestational child that they nurture not only throughout that child’s life but also throughout the pregnancy preceding the birth of the child. The thought of sharing the child with another parent or set of parents may be contrary to the recipients’ parental wishes. An “open” embryo donation should not be default law; the written contract governing parental rights and obligations, custody, and visitation should be something donors and recipients are statutorily required to negotiate and sign. While donors giving up parental rights and obligations in favor of recipients may remain the default, the option to negotiate should be included in the law.
At the same time, states seem to have assumed that donors will wish to terminate all parental rights and obligations. They assume that donors do not wish to have the emotional contact with biological children or risk having to pay some form of child support payments; in this, states may be entirely correct in their assumptions. If donors’ identities were disclosed against their will, or if they were not allowed to terminate their parental rights and obligations, donors’ reproductive autonomy would be violated. In the age of rapid DNA testing and commercial databases, though, the ability to remain completely anonymous is a fleeting possibility. Given that reality, more donors might prioritize the potential to maintain a relationship with any children born as a result of embryo donations on their own terms, rather than through a commercial DNA database at a random point in time.
From the perspective of a child born as a result of an embryo donation, the potential to maintain a connection to their donors can be important. The trend toward open adoptions in the adoption context has been driven by the belief that it is better for the children involved to maintain some contact with their birth parents.[87] Children born of embryo donations might likewise benefit from ongoing connections to their donors, with whom they likewise share a biological tie. From a reproductive justice perspective, then, the ability to negotiate for a possible open, ongoing relationship with any children born as result of embryo donations seems like a crucial component to include in a law governing embryo adoption.
An ideal embryo donation law, from a reproductive justice standpoint, would not coerce donors to donate by restricting their choices of what to do with excess embryos; it would allow them to choose whether to use their embryos, store them, destroy them, donate them to research, or donate them to prospective parents. If they did choose to donate their embryos to other prospective parents, an ideal embryo donation law would continue to treat embryo donation as a property transaction, without conveying personhood to the embryos. It would be written in a way that respected the dignity of the donors, the recipients, and any beliefs they may hold. It would require a signed written contract between the donors and recipients, which would be legally binding and enforceable as long as it conformed with contract norms. The statute would contain a default presumption that the transfer of frozen embryos also transferred all rights and responsibilities for those embryos to the recipients, and it would include a presumption that the gestational carrier of a child born as a result of an embryo donation is the legal parent of that child, with all the rights, obligations, and responsibilities associated.[88] Likewise, the gestational carrier’s spouse would be presumed to be the legal parent of the child. However, the required written contract between the donors and recipients would allow the parties to negotiate for a more open relationship among the parties. This could include clearly delineated rights like visitation or more nuanced rights like notification if a child is born. This could be modelled on open adoption agreements.
The potential downside to this proposed statute is the possibility of increased legal costs for donors and recipients who do choose to negotiate and draft detailed written agreements providing for visitation rights. However, those legal costs will still be substantially lower than the costs of a potential lawsuit over custody or visitation. For donors and recipients who choose to use the default provisions, the costs should not increase.
An ideal embryo donation law would also create a provision requiring all fertility clinics that perform IVF and cryopreserve embryos to allow donations to be performed through their clinics. This provision could allow for complete anonymity on the part of donors who do wish to remain entirely anonymous (although they cannot, of course, prevent future DNA testing). In addition, the proposed law could and should regulate clinics and “embryo adoption agencies” to prevent discrimination based on the prospective parents’ marital status, sexuality, or religion.
This proposed statute bridges the gap between traditional gamete donation laws and traditional adoption laws. It attempts to balance the rights of donors and recipients while bearing in mind the interests of children who may be born through the embryo donation. It also attempts to respect the reproductive autonomy of all parties, while respecting their right to have or not have children. It allows them to raise those children in safe and sustainable communities, while encouraging the possible creation of a community of donors and recipients themselves.
Conclusion
Embryo donations still make up only a small percentage of the assisted reproductive technology (ART) procedures performed in the United States each year, and children born as a result of embryo donations make up an even smaller percentage of children born in the United States. The number of ART cycles performed with donated embryos is increasing steadily, as is the number of children born as a result of embryo donations. Rather than respond as legal issues arise over the donation of cryopreserved embryos or the custody of children born as a result of those donations, states should enact laws proactively. Specifically, states should enact laws that preserve reproductive autonomy of donors and recipients while promoting the best interests of children born as a result of embryo donations. Lawmakers who care about reproductive justice have spent the last several decades on the defensive. Embryo donation laws are an opening for those who care about reproductive justice. They give legislators the chance to take proactive measures to uphold compassionate opportunities for parenthood without enabling the fetal personhood movement. State lawmakers who care about avoiding fetal personhood laws, who care about reproductive autonomy, who care about the ability of people to become parents through assisted reproductive technology, must take affirmative steps to enact embryo donation laws that fit into a reproductive justice framework. This article provides guidance for a reproductive justice-oriented embryo donation law.
[1] Gretchen Livingston, “A third of U.S. adults say they have used fertility treatments or know someone who has,” Pew Research Center, 17 July 2018, https://www.pewresearch.org/fact-tank/2018/07/17/a-third-of-u-s-adults-say-they-have-used-fertility-treatments-or-know-someone-who-has/.
[2] Eliza Barclay, “Why more people are trying to get pregnant with donated frozen embryos,” Vox, 9 May 2016, https://www.vox.com/2016/5/9/11348726/embryo-sharing-donation.
[3] Barclay, “Why more people.”
[4] 2016 Assisted Reproductive Technology National Summary Report (Centers for Disease Control and Prevention, 2018) [PDF file], https://www.cdc.gov/art/pdf/2016-report/ART-2016-National-Summary-Report.pdf.
[5] Barclay, “Why more people.”
[6] Uniform acts are state statutes drafted by the Uniform Law Commission, a non-partisan organization made up of lawyers, judges, professors, and lawmakers, all of whom are appointed by state governments. Not all states adopt uniform acts, but often, states choose to adopt the uniform acts in whole or in part. For an overview, see Uniform Law Commission, https://www.uniformlaws.org/home.
[7] Uniform Parentage Act § 702 (Am. L. Inst. & Unif. L. Comm’n 2017)
[8] Ga. Code Ann. § 19-8-41 (2009).
[9] La. Stat. Ann. § 9:129 (1986).
[10] Okla. Stat. tit. 10, § 556 (2000).
[11] La. Stat. Ann. § 9:129 (1986).
[12] Okla. Stat. tit. 10, § 556 (2000).
[13] Fla. Stat. § 742.14 (1993).
[14] Ga. Code Ann. § 19-8-41 (2009).
[15] Okla. Stat. tit. 10, § 556 (2000).
[16] Tenn. Code Ann. § 36-2-403 (2013).
[17] La. Stat. Ann. § 9:122, 123, 126, 129, 130 (1986).
[18] For an overview of ART and pertinent legal issues, see Jenna Casolo et al., “Assisted Reproductive Technologies,” Georgetown Journal of Gender & the Law 20, no. 2 (2019): 313–55.
[19] Casolo et al., “Assisted Reproductive Technologies.”
[20] Livingston, “A third of U.S. adults.”
[21] Marissa Conrad, “How Much Does IVF Cost?” Forbes Health, 28 September 2021, https://www.forbes.com/health/family/how-much-does-ivf-cost/ (estimating the cost of a single IVF cycle, which includes ovarian stimulation, egg retrieval, and embryo transfer to the uterus at $15,000–$30,000; given this cost, some clinics and patients may be inclined to retrieve more eggs and fertilize more embryos per cycle rather than risk undergoing multiple cycles).
[22] Britney Glaser, “The Fertility Dilemma: Frozen Embryos,” KPLC News, updated 27 March 2009, https://www.kplctv.com/story/10081861/the-fertility-dilemma-frozen-embryos/ (giving a range of 5–10 fertilized embryos per cycle).
[23] Ellen S. Glazer, “Infertility: Extra embryos — too much of a good thing?” Harvard Health Publishing, 22 April 2019, https://www.health.harvard.edu/blog/infertility-extra-embryos-too-much-of-a-good-thing-2019042216476 (giving an example of 12 embryos in a cycle).
[24] Mary Pflum, “Nation’s fertility clinics struggle with a growing number of abandoned embryos,” NBC News, 12 August 2019, https://www.nbcnews.com/health/features/nation-s-fertility-clinics-struggle-growing-number-abandoned-embryos-n1040806 (giving an upper range of 40–60 eggs fertilized embryos per cycle).
[25] Committee on Ethics, “Multifetal Pregnancy Reduction,” The American College of Obstetricians and Gynecologists, September 2017, https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2017/09/multifetal-pregnancy-reduction.
[26] Committee on Ethics, “Multifetal Pregnancy Reduction.”
[27] Pflum, “Nation’s fertility clinics struggle.“
[28] Caroline Lester, “Embryo ‘Adoption’ Is Growing, but It’s Getting Tangled in the Abortion Debate,” New York Times, 17 February 2019, https://www.nytimes.com/2019/02/17/health/embryo-adoption-donated-snowflake.html.
[29] Pflum, “Nation’s fertility clinics struggle.”
[30] Pflum, “Nation’s fertility clinics struggle.“
[31] Barclay, “Why more people.”
[32] Rebecca Buckwalter-Poza, “The Frozen Children: The Rise—and Complications—of Embryo Adoption in the U.S.,” Pacific Standard, 5 May 2014, updated 3 May 2017, https://psmag.com/news/frozen-children-rise-complications-embryo-adoption-u-s-80754.
[33] Jasmine Taylor-Coleman, “The Americans who ‘adopt’ other people’s embryos,” BBC News, 18 July 2016, https://www.bbc.com/news/magazine-36450328.
[34] Lester, “Embryo ‘Adoption’ Is Growing.”
[35] Sherry F. Colb, “The Costs of the Bush Administration’s Promoting ‘Embryo Adoption,’” FindLaw (blog), 28 August 2002, https://supreme.findlaw.com/legal-commentary/the-costs-of-the-bush-administrations-promoting-embryo-adoption.html.
[36] “Fact Sheet: Valuing Life Through Embryo Adoption and Ethical Stem Cell Research,” The White House, 24 May 2005, https://georgewbush-whitehouse.archives.gov/news/releases/2005/05/20050524-10.html.
[37] “President Discusses Embryo Adoption and Ethical Stem Cell Research,” The White House, 24 May 2005, https://georgewbush-whitehouse.archives.gov/news/releases/2005/05/20050524-12.html.
[38] Caroline Reilly, “When a Miscarriage Becomes a Jail Sentence,” California Coalition for Women Prisoners, 21 October 2021, https://womenprisoners.org/when-a-miscarriage-becomes-a-jail-sentence/.
[39] It is difficult to find any recent in-depth law review articles exploring the ramifications of fetal personhood laws. However, Gallagher’s “Prenatal invasions and interventions” remains an insightful overview of the harms of fetal personhood laws (Janet Gallagher, “Prenatal invasions and interventions: what’s wrong with fetal rights,” Harvard Women’s Law Journal 10 (1987): 9–58); see also Lisa McLennan Brown, “Symposium: Feminist Theory and the Erosion of Women’s Reproductive Rights: The Implications of Fetal Personhood Laws and In Vitro Fertilization,” Journal of Gender, Social Policy & the Law 13, no. 1 (2005): 87–108; Jean Reith Schroedel, Pamela Fiber, and Bruce D. Snyder, “Women’s Rights and Fetal Personhood in Criminal Law,” Duke Journal of Gender Law & Policy 7, no. 89 (2000): 89–120; Carliss N. Chatman, “If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship,” Washington and Lee Law Review Online 91 (2020). For other discussions of fetal personhood, see Jeannie Suk Gersen, “How Fetal Personhood Emerged as the Next Stage of the Abortion Wars,” The New Yorker, 5 June 2019, https://www.newyorker.com/news/our-columnists/how-fetal-personhood-emerged-as-the-next-stage-of-the-abortion-wars; Françoise Girard, “Are Women Human Beings?” Ms. Magazine, 18 October 2021, https://msmagazine.com/2021/10/18/women-human-beings-abortion-fetal-personhood-embryo-human-life-mississippi-dobbs-v-jackson-supreme-court/; Craig R. Sweet and Harold Eskin, “Embryo Adoption Or Embryo Donation?” Embryo Donation International, updated 6 April 2013, https://www.embryodonation.com/embryo-adoption-or-donation.php.
[40] Sweet and Eskin, “Embryo Adoption Or Embryo Donation?”
[41] Sweet and Eskin, “Embryo Adoption Or Embryo Donation?”
[42] Barclay, “Why more people.”
[43] Barclay, “Why more people.”
[44] Ethics in Embryo Research Task Force and Ethics Committee of the American Society for Reproductive Medicine, “Ethics in embryo research: a position statement by the ASRM Ethics in Embryo Research Task Force and the ASRM Ethics Committee,” Fertility and Sterility 113, no. 2: 270–94, DOI: 10.1016/j.fertnstert.2019.10.012.
[45] Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
[46] Barclay, “Why more people.”
[47] Lester, “Embryo ‘Adoption’ Is Growing.”
[48] Barclay, “Why more people.”
[49] Barclay, “Why more people.”
[50] Taylor-Coleman, “The Americans who ‘adopt’ other people’s embryos.“
[51] Barclay, “Why more people.”
[52] Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).
[53] “Roe v. Wade in Peril: Our Latest Resources,” Guttmacher Institute, last visited 16 January 2022, https://www.guttmacher.org/abortion-rights-supreme-court.
[54] “Roe v. Wade in Peril,” Guttmacher Institute.
[55] La. Stat. Ann. § 9:123–5 (1986).
[56] La. Stat. Ann. at § 9:129.
[57] La. Stat. Ann. at § 9:122.
[58] La. Stat. Ann. at § 9:130.
[59] La. Stat. Ann. at § 9:130.
[60] La. Stat. Ann. at § 9:130.
[61] La. Stat. Ann. at § 9:130.
[62] La. Stat. Ann. at § 9:130.
[63] See Loeb v. Vergara, 313 So.3d 346 (La.App.4 Cir. 2021).
[64] John Bologna Krentel, “The Louisiana ‘human embryo’ statute revisited: reasonable recognition and protection for the in vitro fertilized ovum,” Loyola Law Review 45, no. 2 (1999): 239–46.
[65] Okla. Stat. tit. 10, § 556 (2000).
[66] Okla. Stat. tit. 10, § 556.
[67] Ga. Code Ann. § 19-8-41 (2009).
[68] Ga. Code Ann. § 19-8-41.
[69] Ga. Code Ann. at § 19-8-41, 42, 43.
[70] Tenn. Code Ann. § 36-2-403 (2013).
[71] Tenn. Code Ann. § 36-2-403.
[72] Tenn. Code Ann. § 36-2-403.
[73] Tenn. Code Ann. at § 36-2-401.
[74] Harold S. Eskin and Craig R. Sweet, “Why Florida? Florida: A Safe Haven For Embryo Donation,” Embryo Donation International, last updated 6 April 2013, https://www.embryodonation.com/florida-statutes.php#:~:text=Florida’s%20Statutes%3A&text=Examining%20the%20rights%20of%20the,well%20as%20the%20resulting%20children.
[75] Marla Neufeld, “Summary of Florida Surrogacy Laws and Florida Egg Donation, Florida Sperm Donation, and Florida Embryo Donation Laws,” Marla Neufeld Law (blog), 2 March 2020, https://marlaneufeld.com/summary-of-florida-surrogacy-laws-and-florida-egg-donation-florida-sperm-donation-and-florida-embryo-donation-laws/.
[76] Fla. Stat. § 63.213 (2012).
[77] Fla. Stat. § 63.213.
[78] Model Act Gov. Assisted Reprod. (2019) (Am. Bar Ass’n).
[79] Model Act Gov. Assisted Reprod. (2008) (Am. Bar Ass’n, amended 2019).
[80] Model Act Gov. Assisted Reprod. § 602 (2019).
[81] Model Act Gov. Assisted Reprod. § 602 (2008) (amended 2019).
[82] Model Act Gov. Assisted Reprod. § 602 (2019).
[83] See Part III, supra.
[84] Lauren M. Fair, “Shame on U.S.: The Need for Uniform Open Adoption Records Legislation in the United States,” Santa Clara Law Review 48, no. 4 (2008): 1039–68.
[85] Jessica Colin-Greene, “Identity and Personhood: Advocating for the Abolishment of Closed Adoption Records Laws,” Connecticut Law Review 49, no. 4 (2017): 1271–98.
[86] “Reproductive Justice,” SisterSong, last visited 19 February 2022, https://www.sistersong.net/reproductive-justice.
[87] Harold D. Grotevant, Open Adoption: Rethinking Family (Rudd Adoption Research Program, University of Massachusetts, Amherst, 2019) [PDF file], https://www.umass.edu/ruddchair/sites/default/files/rudd.grotevant.pdf.
[88] In cases where a donated embryo was then carried by a gestational surrogate, the applicable surrogacy law would govern. The default presumption that the gestational carrier is the legal parent of the child would be overcome by the surrogacy contract and the governing surrogacy law, stating that the gestational surrogate is not the legal parent.