At one time, adopting a child was the only option for couples who could not conceive. Thanks to advancements in technology, it is now possible for couples to adopt an embryo, and carry out a pregnancy just as they would normally. If you’re considering adopting an embryo, you may be wondering if this practice is even legal in New Jersey.
In short, the answer is yes. However, these adoptions do have some caveats, and it’s important to understand how the process works.
How Embryo Adoption Works
Many couples go through IVF (In-Vitro Fertilization) procedures each year, and many have remaining embryos because they either no longer wish to try to have children, or they have successfully had at least one child. The remaining embryos can be donated by the couple. Once donated, the embryo is frozen and stored in either a storage facility or a clinic.
Donated embryos are then made available to couples who cannot have children naturally or through IVF.
In many cases, the clinic will seek out candidates to adopt the embryos, but some couples may choose to take charge of this process. Adopted embryos are used through IVF, and hopefully, the adopting couple succeeds in having children.
The Legal Process
It is important to note that the term “adoption” is used loosely when it comes to embryos. State adoption laws do not apply to embryos, but rather to children who have already been born. Religious beliefs aside, embryos are not considered a “person” or a “child” in the eyes of the law. It is merely a fertilized egg.
The idea of legal or physical “custody” does not apply here either as only children can be the subject of custody disputes.
If state adoption laws do not apply and custody issues cannot be brought up, what does this mean for adopting couples and those who donate?
Generally, embryo adoptions are handled through a contract, which controls how the embryos are used. This is where things can get messy.
Take, for example, one couple who entered into a contract to adopt another couple’s four donated embryos. Inside of the contract was a stipulation that if the IVF did not work within one year, the adopting couple would return the embryos. Near the end of the one-year deadline, the adopting couple learned they were having twins. However, because it was so close to the one-year deadline, the donating couple sent the adopting couple a letter demanding that they return the remaining two embryos.
Complications can and do arise during this type of adoption. For this reason, it is imperative that both couples create a thorough contract that covers all bases. Remember, state adoption laws do not apply, and the courts will treat this dispute just as they do any other contract dispute.
Donating couples should also keep in mind that giving up your embryos may also mean that you will have no say in how the embryo is used. The clinic may decide to use them for scientific research. If the embryos are adopted, you will have no legal claim to the visitation or the custody of the child.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.