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Legal battle over language could impact Roe v. Wade decision
DeAnn Reed
Antelope Staff

The issues surrounding the adoption and or donation of unused embryos has created several legal hurdles— the foremost is the definition of the term “embryo”.

Should 400,000 embryos frozen in cryopreservation banks across the country most ethically be disposed of on a paper towel or adopted out to families seeking a child or should the embryos be donated? It is the language surrounding the legal terms currently given to the processes that could affect the future of Roe v. Wade.

Pro-life advocates argue that the adoption model is the ethical avenue for the cryopreserved embryos. To protect the embryos, potential “adoptive legal parents would be required to go through all the same legal hoops afforded in adopting children.”

Lining up on the other side—scientists, who term embryos as “cellular matter,” argue embryos are the “legal property” of the genetic parents. The proper disposition of the embryo according to them—donation.

Researchers argue the embryo is not any different than a donated liver.

Caught somewhere in the middle, is a third group arguing that embryos should be afforded a “special status and interim protection because of their unique capability to give rise to new human life.”

The definition over how the law defines an “embryo” continues to fuel the debate over adoption vs. donation. But the debate over how the process of “placing” embryos is semantic.

Agencies like Snowflake Adoption Agency in Fullerton, Calif., rely on contract law to process the embryos. The irony?  Snowflake sees themselves as “adoption” agencies as noted in their company’s name.

Legal scholars like Elizabeth Swire Falker, an attorney who specializes in third-party assisted reproduction, argue that the biggest debate over embryos is not whether they are used for scientific research, but if they are used for creating a family. While contract law is observed in these circumstances, agencies like Snowflake still make their families undergo an adoption home study and child abuse clearance.

According to Falker, there are around 400,000 cryopreserved embryos in the United States. Falker writes, “What an embryo is and how it should be treated are hotly debated issues at the forefront of reproductive science and the law.”

The legal issues concerning adoption must be defined by the terms the legal system gives embryos. Falker writes, “First and perhaps foremost, the issue of whether these embryos can or should be donated to or adopted by the prospective parents involves overarching notions of when life begins.”

If life begins at fertilization, some commentators argue that an adoption model must be used to process these embryos to create a new family. Significant practical roadblocks exist, however, to the application of an adoption model, as the vast majority of states do not permit the pre-birth termination of parental rights. This means that states cannot terminate the rights of parents for children that are yet to be born.   

If, instead, these frozen embryos are not to be afforded protection either as ‘potential life’ or as ‘juridical persons,’ other commentators argue that the donation model becomes more persuasive and practical, enabling frozen embryos to be donated to third parties without concerns regarding the pre-birth termination of parental rights.

So, the first and most critical question presented is, “What legal status can or should be attributed to a fertilized human ovum that has been cryogenically preserved?” It is this legal battle over the terms to give embryos that state legislatures across the nation face.

The debate according to legal scholars like Falker is the misapplication of terms given to embryos. One term considers the embryo a living human, while the other term eliminates the distinction and sterilizes the cell as property.

It is unclear whether legal headway has been made to define “embryo.” Until it does, the debate between pro-life advocates and researchers will remain. Falker believes that until this distinction is given, “clarification of the terms and the laws as they apply to this process is necessary in order to make embryo donation/adoption a continued means of family building, and in order to preserve the pro-creational autonomy as outlined in Roe— which may well be at risk.”  

Other legal commentators like Charles P. Kindregan, professor of law at Suffolk University and Maureen McBrien, adjunct professor of law at Suffolk University who specialize in reproductive law agree when they write: “The longer the process is called embryo adoption, and the more common the phrase becomes, the more society may view embryos as persons entitled to legal protection. This view would challenge the basic premise of the right to choose abortion without state interference.”

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