Embryo Donation

I went to check my email last night, and noticed a headline about a court battle over donated embryos. When I picked up my morning paper today, the same story appeared on Page One. The specific story involves two couples -- one in California and one in Missouri. Both couples believe that life begins at conception, and consider the frozen embryos to be unborn children waiting for an opportunity for life. They met on-line and -- believing that the embryos are children -- went through an embryo "adoption" process. However, it does not appear that any lawyers or agencies were involved in this process (according to the news story, they used a "pro forma" contract -- whatever that means -- that had been previously drafted to address concerns of the Catholic Church regarding destruction of unused embryos), and the contract they used apparently granted "custody" of the embryos to the Missouri couple for one year, after which time the California couple had a right to revoke the agreement. The Missouri couple implanted two of the embryos, had twins, and now want to implant the other two embryos; the California couple are trying to revoke the agreement, since it now has been more than a year since custody was granted to the couple in Missouri. This case raises many tricky ethical, moral and even religious questions, not to mention giving judges in Missouri -- and maybe in California -- a lot to think about. There is quite a debate in the assisted reproduction community about whether the legal process for transferring possession of frozen embryos from one individual or couple to another should be viewed as a transfer of property -- to which general contract law applies -- or as an adoption. I know of at least one California agency that takes the same position as the couples in this case -- that frozen embryos are "pre-born children" -- and requires a genuine adoption process including a home study before approving the donation of embryos from one couple to another. However, most folks transferring embryos do not go this route, and instead hook up on the internet (after all, it is 2010), and cobble something together on their own. Current estimates are that there are approximately 500,000 frozen embryos now in existence in the United States. Nobody knows what to do with all these embryos, and good options are needed. Should they be used for scientific research, for stem cells, for ... ? Are they "pre-born children" whose lives already are sacred? Clearly, these embryos have the potential to offer the hope of pregnancy and childbirth to the many infertile couples who had previously given up that hope. But there is almost no law on embryo donation. Thus, messes like the one I read about in the news last night and again this morning. It will take years for the courts and legislatures to figure out what to do about embryo exchanges -- especially since, this being family law, chances are that each state will have to figure this one out on their own. In the meantime, there is one very clear moral to this current news story: Whatever your political/religious/moral views are about embryo donation (or embryo adoption), DO NOT use some one-size-fits-all contract off the internet to address the legal issues of transferring possession of cryopreserved embryos from one party to another. A consultation with experienced assisted reproduction attorneys who understood the legal issues, followed by a well-written legal contract between these two couples -- clearly setting out the conditions for the donation and addressing the specific grounds upon which it could be revoked -- would have left these two families with a concrete understanding of what they had agreed to and, in a worst case scenario such as the current one, would have provided the courts with clear guideposts for how to approach resolution. I have many clients who are embarking on journeys toward parenthood in a variety of ways. They are looking to be parents, not media stars-for-a-day or test cases. A well-drafted contract goes a long, long way toward assuring that they will end up with a baby, not a lawsuit. It may seem self-serving, but trust me: this is one area where money spent on an attorney who knows this area of law is truly money well spent.