By Susan L. Crockin
December 4, 2005
This past May, to protest a bill on embryonic stem cell research, President Bush surrounded himself with 21 babies, each of whom had been born to parents through the donation of a frozen embryo. Declaring that there is ''no such thing as a spare embryo," President Bush suggested that surplus embryos should be ''adopted" and used to produce children, not stem cell research.
To further this agenda, the Republican-led Congress has given almost $3 million in grants to promote embryo ''adoption," funneling much of it into the ''Snowflake embryo adoption program" sponsored by Nightlight Christian Adoptions. This private, religious-affiliated adoption agency, whose website touts embryos as ''preborn" children, matches only married, Christian donor and recipient couples. They require a promise neither to abort nor selectively reduce any resulting pregnancies, without exception.
But here's something that neither the Bush administration nor many of the news reports on the subject explain: There is no such thing as ''embryo adoption." It isn't adoption, and it isn't legal (except in Louisiana, where the constitutionality of a law declaring embryos to be ''juridical persons" with virtually the same rights as born infants is sure to be challenged). In fact couples with ''spare" or unused frozen embryos have had the option of donating them to other infertile recipients for decades.
So, why all the hoopla? Why do the relatively few resulting babies (less than 100 at last count) end up in this president's arms at press conferences, and why does the practice merit millions in federal funds? Maybe, just maybe, the real goal behind this ''language creep" is to change the public's perception of embryos. Rather than a collection of undifferentiated cells, they become ''preborn" children and part of a thinly disguised antichoice agenda and an all-out cultural war on modern reproductive medicine, stem cell research, and personal choice.
As a lawyer working and writing in the field of reproductive technology for almost two decades, I have helped many families and in-vitro fertilization programs through the process of embryo donation for family formation. A decade ago, many IVF programs ''ramped-up" to make this attractive sounding option widely available. Time and experience have shown that, by whatever label, this is not an option for the majority of embryos, patients, and programs.
First, the number of embryos available for donation (for ''adoption" or research) is far less than the estimated 400,000 so frequently quoted. That estimate includes all frozen embryos. But according to a 2003 study, approximately 88 percent of those frozen embryos are still under the active control of the patients who created them and are still trying to create a family with them. Of the remaining embryos, only about 2 percent of patients were found to actually choose to donate their embryos to another family for procreation -- likely, at least in part, from discomfort over donating their born child's potential genetic sibling. In my own practice and those of many of my colleagues, almost 75 percent of patients who seriously consider donation ultimately decide not to donate to another family. Many of those patients choose to donate for research.
Another often-overlooked reality is that many of the remaining stored frozen embryos are simply not available for transfer. If they have been ''abandoned" by the patients who created them, serious ethical concerns should prevent programs from allowing other patients to use them to try to become parents, and professional guidelines clearly prohibit such unauthorized use. Other remaining embryos are those tested and found to carry serious genetic abnormalities, such as Tay-Sachs and Cystic Fibrosis, and thus not selected for implantation -- usually by parents of one child with the often-fatal genetic disorder. Many of the same antichoice voices calling for embryo ''adoption" oppose preimplantation genetic diagnosis.
From a strictly legal perspective, no matter how warm and fuzzy it may sound, adoption is simply an ill-fitting analogy for the transfer of genetic material in the form of embryos, eggs, or sperm. An embryo does not have legal parents, and it is not adoptable -- a distinction antichoice proponents (and those who want their votes) choose to overlook. In virtually every state, adoption is a judicial proceeding involving the placement of a live child in need of a home, pursuant to laws and procedures designed to scrupulously and primarily protect the child's best interests while transferring parental rights and responsibilities for that child.
Like most states, Massachusetts requires a post-birth ''cooling off" period before any biological parent can relinquish their legal rights to a child. Do ''parents" of ''embryos" have the right to change their minds up to four days after birth? Can they ask for their embryo back? If not, is the embryo ''adopted" when it moves from the freezer to another woman's uterus? If so, have we just accepted the argument that an embryo is a separate life -- with all of the rights and privileges of born persons? There are many members of the antiabortion community who would like this intepretation to become the rule of law.
If an embryo (whether created through therapeutic cloning or by former IVF patients) is a ''life with inalienable rights" -- as our governor suggested during the debates over recently enacted stem cell legislation -- it could not be discarded or used for research. Instead, patients would lose the right to control their own genetic material unless they opted for planned but unwanted pregnancies. IVF programs would have the right, if not the legal obligation, to make excess embryos available to others. Courts might need to appoint a guardian ad litem to determine the ''best interest" of the embryo regardless of the wishes of those who created it.
Eight states have passed embryo donation laws that, as with sperm and egg donation, clarify the legal status of donors and recipients. Similar laws in more states would be welcome and might include provisions for record-keeping, openness, and counseling for any individuals considering donating an embryo or parenting a nonbiological child. But parenthood through gamete (egg or sperm) or embryo donation is not second-rate parenthood, and we don't need to add the ''adoption" label to respect the resulting children or families, as some advocates of embryo donation insist.
So, if so-called embryo ''adoption" isn't new, widely used, or legally necessary, why are we suddenly devoting so much time, money, and attention to it? The language creep seems to be part of an increasingly visible and multi-pronged strategy, at both the federal and state levels, to elevate the embryo or fetus to constitutionally protected personhood status. Recent expansions of federal health benefits to embryos and fetuses of noneligible pregnant women (instead of to the women themselves), expanded definitions of ''human subjects" for medical research, state bills promoting ''embryo adoption" and expanding definitions of ''unborn (crime) victims" to the point of fertilization, and proposed legislation to limit the number of embryos created in IVF treatment, all point in that direction.
Congress has now three times allocated a total of more than $3 million to promote ''embryo adoption." Despite the majority of those federal dollars going to Nightlight Christian Adoptions, since opening eight years ago the agency's Snowflakes Embryo Adoption program has resulted in less than 100 born babies. In June, the newly formed National Association for the Advancement of Preborn Children, or NAAPC), sued to stop stem cell research in California on behalf of ''preborn" children claiming violations of their constitutional and civil rights.
IVF patients have always had the option, among others, to donate their embryos to other patients, whether through their IVF clinics or through private agencies or programs with a wide variety of philosophical and religious perspectives. To force adoption frameworks onto frozen embryos as a matter of law and policy would significantly reduce those choices, while elevating one religious doctrine -- that of the Christian right--over others.
Changing the vocabulary to blur the distinction between four- to eight-cell embryos and born children -- by naively or intentionally using terms like ''embryo adoption," ''preborn children," or ''microscopic Americans" and those who create them ''parents" -- is not only legally wrong, but for those of us post-born people who value real adoption, choice, reproductive health, and stem cell research, bad public policy. Beware of agendas that may be lurking in the petri dish.
Susan L. Crockin is a reproductive technology and adoption lawyer and the editor and contributing author of ''Adoption and Reproductive Technology Law in Massachusetts."
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