Q&A

Embryo Adoption Legal Contract – Making It Legal

Embryo Adoption Legal Contract

Congratulations, you’ve matched! Now what do you do? You need to sign an embryo adoption legal contract.

After matching, the next steps include:

  1. Hiring an attorney to draw up an embryo adoption legal contract
  2. Agreeing upon the terms in the contract
  3. Signing and notarizing the contract

After signing, the adoptive family legally owns the embryos, and the donor family relinquishes their parental rights and responsibilities.

Most states consider embryo adoption a “property transfer” much like selling a vehicle. If you prefer, you can tailor your contract to resemble a traditional adoption agreement. After a child is born, you can choose to finalize the adoption in court, a step not necessary in some states. Fertility clinics require a legal contract be executed to transfer ownership of the embryos.

What’s the legal difference between traditional adoption and embryo adoption/donation?

The legal differences between Post-Birth adoption – newborns, infants, and older children – and Pre-Birth adoption of embryos all stem from this root: the law recognizes the Post-Birth adoption as involving a child – while Pre-Birth embryos are not legally recognized as children – they are considered property.

The Embryo Adoption Awareness Center explains the situation this way:

“Just to be very clear and transparent on all levels, in the U.S. embryo adoption is not considered a legal form of adoption because embryos are considered property, not people. Therefore, the process is governed by property contract law, not by adoption law. We are applying the best practices of adoption to the whole process, but adoption law does not apply.”

Since embryos are considered property, can they be sold? What fees can be paid to donors?

Much like your kidney or other organs, embryos cannot be sold. They can only be donated. The law allows  reimbursements of expenses paid AFTER the creation of the embryos – frozen embryo storage and FDA testing needed for donation purposes – to be paid to the donors. Expenses for the creation of the embryos – IVF, medicines needed for cycles, etc. – are not reimbursable to donors.

Does the adoption need to be finalized in court? Does a notarized contract meet all legal criteria to finalize the transfer of the property -the embryos?

The legal process for embryo adoption differs, and is much simpler, than the traditional adoption of a child after birth. Again, the Embryo Adoption Awareness Center offers a succinct explanation.

“This question of finalizing the adoption in court is really unnecessary because in the U.S. the law states the woman who gives birth to a baby is the legal mother and the man to whom she is married is the legal father. That is the legality of embryo adoption. Once you give birth to the baby, you are the baby’s legal parent and there isn’t a need to finalize in court. Although there are embryo adoption agencies around the country that do provide this service to their clients and they have judges in their area who are willing to listen to those adoption cases. In other cases, like in California, they won’t even listen to cases about embryo adoption in a court because they already recognize the adoptive parents are the child’s legal parents.

In the state of Georgia, legislation was passed in 2010 giving families who adopt frozen embryos the right to finalize their adoption in court if they want. It is a choice, not a requirement.”

Is legal representation necessary, or can I create my own document?

Just as “good fences make good neighbors,” it is also true that, “good contracts make good matches.” With legal contracts costing as little as $350 on NRFA.org, we highly recommend you use an experienced embryo adoption and donation lawyer. Email info@nrfa.org for more information about this option. There are several reasons to work with an experience lawyer on your embryo adoption legal contract:

  1. If you unknowingly include something illegal in a contract it could jeopardize the legal validity of the contract.
  2. If you unknowingly exclude something, it could cause problems in the future with your match. A good contract will give you an opportunity to discuss all aspects of the arrangement – many things you don’t even realize need to be discussed – and reach an agreement of terms prior to a child being involved.
  3. Experienced lawyers know of several important legal issues to include in the contract including future inheritance rights and access to future medical support such as stem cells and bone marrow transfers.

Do I need to hire a lawyer in my state to do my embryo adoption legal contract? What if our donors live in a different state?

Legal contracts need to specify which state they will be ratified in, thereby detailing which laws they are governed by. NRFA partners with a law firm in Texas due to favorable contract and mediation laws. Anyone is eligible to use this legal service regardless of their state of residence.

Learn more about the laws and policies regarding embryo adoption at Embryo-Adoption-2013-LG.