Naomi D. Johnson, Excess Embryos: Is Embryo Adoption a New Solution or a Temporary Fix?

68 BROOK. L. REV. 853 (2003).

Traditional adoption agencies recently began applying their experience in child adoptions to facilitate embryo adoptions. One of the first agencies to do this was Nightlight Christian Adoptions. Nightlight created a program called the "Snowflakes Embryo Adoption Program," to offer adoption of what it calls "pre-born children." Although no state has established a legal framework for embryo adoption, Nightlight uses its forty years of experience in traditional child adoption to match donating couples with adopting couples. In addition to facilitating the actual adoption, Nightlight contracts with doctors to work on the actual embryo transfer. Fertility clinics also offer embryo adoption, however, they do not treat embryo adoption with the same formalities and considerations as a traditional adoption.

The growing practice of embryo adoption raises a host of new ethical, moral and legal dilemmas that have yet to be resolved. Despite this, fertility clinics and adoption agencies continue to facilitate embryo adoption, a practice left entirely unregulated by federal and state governments. As a result, some commentators claim that this practice poses substantial risks for the intended and gestational parents, the donors and the resulting child.

The most significant advantage of embryo adoption is that the process provides some donors with an alternative means of dealing with their excess, unused embryos that is both morally and ethically acceptable to them. Many people choose to maintain their embryos in storage indefinitely, hoping to put off an eventual decision. For people who do not view life as beginning at conception, thawing and discarding the embryos, or donating them for scientific research are viable options. For people who dislike these choices, however, embryo adoption constitutes the sole alternative.

One disadvantage for the donating party is that they may wonder about the fate of the embryos they donate, and experience a sense of loss similar to that inherent in traditional adoption. For at least some people, however, the positive aspect of potentially giving life to their potential child by refusing to discard the embryo will outweigh this sense of loss. Another disadvantage is that in programs that treat the adoption anonymously, a concern still exists that genetic parents may attempt to find the resulting child, and vice versa. Some infertility experts maintain that any...