Are you my Mommy? A Call for Regulation of Embryo Donation

• Author: Michelle L. Anderson
• Position: J.D., 2006, Capital University Law School, B.S.N., 1999, University of Cincinnati.
• Pages: 589-626

Page 589

The author would especially like to thank Teresa Anderson, B.S.N., R.N. and Elizabeth West, R.N.C., B.S.N. from the Institute for Reproductive Health in Cincinnati, Ohio, for their invaluable assistance with this Comment. Also, many thanks are extended to the editors who assisted with this work.

Are you my mother? ¹

Introduction

John and Mary Smith² tried for two years to start a family, but they were unsuccessful.³ Their options were adoption or assisted reproduction.⁴They wanted their own children, so they decided to try assisted reproduction first.⁵ After undergoing testing, they underwent an in vitro fertilization procedure.⁶ The procedure was successful and produced eleven viable embryos.⁷ Three of these embryos were transferred to Mary; the rest were stored for later use.⁸ Unfortunately, the first attempt was not successful, so they tried again.⁹ Three of the stored embryos were again Page 590 transferred-and this time, Mary became pregnant.¹⁰ Two of the three embryos had successfully implanted.¹¹ Nine months later, Mary gave birth to twin daughters.¹²

The Smiths now have five remaining embryos cryopreserved¹³ in the fertility center.¹⁴ They pay annual storage fees of $400.¹⁵ They have decided not to use the embryos themselves.¹⁶ Now they must decide what to do with the remaining embryos.¹⁷ Their choices are to continue to keep the embryos in storage, paying the annual fees; thaw (i.e., destroy) the embryos; donate the embryos for scientific research; or donate the embryos to another infertile couple.¹⁸ They cannot decide upon the best option for them, so their embryos remain in storage.¹⁹

Doug and Tammy Jones²⁰ faced the same dilemma.²¹ They, too, underwent successful in vitro fertilization and now have four children.²²They had four embryos in storage, but the physicians informed them that Tammy would be unable to bear any additional children.²³ After considering the options available to them, they chose to have their embryos thawed and destroyed.²⁴ They chose this option because they were not comfortable having someone else raise their genetic children, and because Page 591 their religious beliefs did not allow them to donate the embryos to science.²⁵

Gregory and Jody Miller, on the other hand, chose to donate their surplus embryos to science.²⁶ Because Jody was forty years old, they did not have the option of donating the embryos to another couple²⁷-the chances of success with her embryos would be considerably lower than desired.²⁸ They did not wish to destroy the embryos: they wanted to "do something purposeful with them."²⁹ They did not see the embryos as children; rather, they saw them as something important that needed to have a useful purpose.³⁰ They donated the embryos to Johns Hopkins University Medical Center for scientific research on genetic disorders.³¹ Page 592

Andrew and Julia Thomas³² morally could not choose any option but donating their surplus embryos to another couple.³³ They viewed the embryos as potential children.³⁴ The fertility center offered this service, so they donated their surplus embryos anonymously to another couple using the center.³⁵ Emotionally, it was a very difficult decision.³⁶ They understood the draining nature of the assisted reproduction process.³⁷ They tried to imagine how they would have felt if their procedure had not been successful.³⁸ They knew they would have been devastated.³⁹ Julia, though, was reluctant to donate the embryos because she would never know how her children were being raised.⁴⁰ Because the process was anonymous, she would look at every child on the street, wondering if it were hers.⁴¹ Her concerns were outweighed, though, by her need to help others achieve what she had achieved-a family.⁴²

Jacqui and Jeff Worthley also chose to donate their extra embryos to another couple.⁴³ Unlike the Thomases, they wanted to choose the recipient couple.⁴⁴ They posted information on an in vitro fertilization website, and they received many emails requesting their embryos.⁴⁵ They used a questionnaire to narrow the candidate pool and eventually requested pictures of the potential recipient couples.⁴⁶ They finally chose a couple who shared many of their physical traits.⁴⁷ The Worthleys also set up certain stipulations to which both couples had to adhere: notify them of the gender of the child(ren); keep addresses current; and allow the child to Page 593 contact them in the future.⁴⁸ Unfortunately, the donated embryos did not result in a successful pregnancy at first, and the recipient mother was devastated.⁴⁹ They are determined to try again with the rest of the donated embryos.⁵⁰

When Patrisha Wilson was seventeen years old, she was told by her doctors that a future pregnancy was unlikely.⁵¹ Later, after being unsuccessful at achieving pregnancy on her own, she began looking into other options.⁵² Patrisha began the emotionally and financially draining journey of assisted reproductive technology.⁵³

Patrisha tried artificial insemination and donor programs.⁵⁴ She was told that she could carry a child but could not produce the egg needed to have a child.⁵⁵ A donated embryo was her only option.⁵⁶ Patrisha was placed on a waiting list for frozen embryos and was told that it could take over two years to receive a donor embryo, because not many were available.⁵⁷ Finally, Patrisha found a fertility clinic that had frozen donor embryos available.⁵⁸ In June 2003, Patrisha underwent a transfer procedure with donor embryos, and she became pregnant.⁵⁹ In January 2004, Patrisha finally gave birth to a baby boy, Nathan.⁶⁰

Patrisha's dream of motherhood came true as a result of donated embryos. If the couple who donated the embryos had decided to keep the embryos in storage or discard them, Patrisha's dream of becoming a mother would have never come true. Patrisha was one of many women on a waiting list to receive donor embryos from those who had a surplus.⁶¹ At many fertility treatment centers, the waiting list to receive a frozen donor Page 594 embryo is at least two to three years long.⁶² One reason for this is that couples with surplus embryos are reluctant to donate them to other childless couples because the embryo donors will then have other genetic children⁶³ besides those they are raising.⁶⁴ The possibility that their children will have genetic siblings is great if the couple decides to donate their surplus embryos.⁶⁵ The couple therefore goes through the same emotional decisionmaking process as is done before giving an infant up for traditional adoption.⁶⁶

Another reason that couples are unwilling to donate their surplus embryos to other couples is that few regulatory procedures are in place to ensure that the embryo will be going to a "good home."⁶⁷ Unlike traditional adoption, which carries with it multiple procedural requirements,⁶⁸ embryo donation is largely unregulated.⁶⁹ Many psychologists are promoting traditional adoption statutes as necessary to regulate embryo donation.⁷⁰ These psychologists feel that such regulation will protect the parties involved and make them accountable to society and to future generations.⁷¹ More couples would feel willing to donate their Page 595 embryos if such regulations were in place.⁷² One reason few regulations exist is that very few state statutes acknowledge the existence of embryos⁷³-courts have been left to determine their status, whether they are persons, property, or something between the two.⁷⁴ States not only need to address the legal status of embryos statutorily, but they also need to enact legislation regulating the donation procedures to protect the best interests of both the genetic parents and the children. Patrisha's son Nathan may never be able to obtain information about his genetic parents, because no state requires fertility centers to maintain this information.⁷⁵This Comment focuses on the need for such regulation, emphasizing the psychological effects of the lack of regulation.

Part I gives a broad overview of the history of assisted reproductive technology, focusing on the different treatments available and the methods utilized. It describes the medical procedures commonly used in fertility centers, focusing on gamete donation, egg donation, and embryo donation. It also describes current legislation affecting both traditional adoption and the treatment of embryos, focusing on the current lack of consistency in the legal treatment of embryos. Part II then focuses on the need for governmental...