The AFA thanks Google, a premiere sponsor, for their online advertising grant.
The American Fertility Association Blog
Georgia House Bill 388, The ‘Option for Adoption’ Act.
June 3, 2009 - Wednesday
Posted by admin
By: Daniel Shapiro, M.D.
Georgia recently enacted Georgia House Bill 388, the ‘option for adoption’ act. The bill provides legal basis for patients using donated embryos to ‘adopt’ them under the Georgia family law code. This bill is the first of its kind to be enacted and represents one of many attempts by right to life groups to establish ‘personhood’ of embryos. By all prior legal standards and in all reproductive medicine clinics practicing embryo donation, embryos are considered property, not people.
The moral standard implied by this bill is likely to be unconstitutional because it violates the 1st amendment’s establishment clause (separation of church and state). Though reasonable people can certainly argue for the ensoulment of a pro-nuclear embryo, the civil pacts by which we live in this country prevent the supremacy of one religious view over any other or over any irreligious view. Since the concept of personhood is inherently a religious question, this law violates our nation’s constitution. The law also probably violates the 14th amendment (equal protection under the law) since it establishes a special class of human being with rights that supersede the rights of others in the class. Why should an IVF embryo have the right to be adopted and treated as an ‘individual’ while a naturally conceived embryo has no similar protection?
I had the privilege to testify before the Georgia committee hearing this bill before it passed. First let me say that what was originally written was so egregious and foolish that had the original language passed Georgia’s legislature would have looked plain stupid. An attorney with extensive experience in Georgia family law and third party reproduction rewrote much of the bill and eliminated the expressed intent to make all IVF embryos into full grown people. She also crafted the language in a way that makes the bill superfluous in that it only created the option for an expedited adoption process but does not require it. In effect the law does nothing except answer to the rantings of the religious right.
Because the law is vague as to how it is we are supposed to actually proceed with these cases, we in the REI community in Georgia do not foresee any change in our practice. Our consents and contracts with patients have provided for rescission of parental rights in the case of embryo donation from time immemorial. Unless a recipient patient actually tells outside parties how she achieved pregnancy, all anyone would see is a pregnant woman anticipating delivery. Since the overwhelming majority of embryo donations are anonymous, the donor would not know if a) her embryos became pregnancies or b) who actually got pregnant. It is hard to imagine a case where a willing embryo donor would come back and sue for parental rights since said donor wouldn’t know if or when a donation took place. Even if she could discern the above from the unavailability of her former property, she would not know if the procedure actually worked. Someone would have to show a compelling reason for us to violate someone else’s right to privacy and reveal their identity and the circumstances of their embryo recipiency. Ain’t gonna happen. I defy anyone who claims to believe in freedom and autonomy (many are in the same party as the religious right) to explain why the state of Georgia has a compelling interest in unmasking HIPPA protected patients.
Dr Shapiro is board certified in Reproductive Endocrinology and is the former medical director of Reproductive Biology Associates (RBA). He is currently the clinical director of RBA’s egg donor program and the RBA egg bank.
In cases where the embryo donor is not anonymous (a rarity) the bill allows for expedited adoption. Though this may afford a greater level of protection for the recipient’s claim to parentage, the physical reality of labor and delivery is probably a good enough standard under which a couple may establish their claim. To the best of my knowledge, there are no cases of willing embryo donors coming back to claim parental rights. It is equally hard to imagine what would happen if they did. For this law to be applicable at all, the donation, gestation and residence of all the parties would probably have to be in Georgia. If any of the parties, especially the recipient lived out of state, the existing property laws and family statutes of the resident state would likely apply.
From a medical perspective, we could limit our donations only to embryos that came from egg donation and then offer them only to out-of state recipients. This is likely to be unnecessary as again the bill only provides for the adoption option. After the law is enacted on July 1st it would be prudent of us to be sure to document that we informed recipients of the adoption option. Beyond that we see no change to medical practice standards under this bill.
Dr Shapiro is board certified in Reproductive Endocrinology and is the former medical director of Reproductive Biology Associates (RBA). He is currently the clinical director of RBA’s egg donor program and the RBA egg bank.
Categories
Adoption •
Embryo Donation •
Family Building •
IVF •
Pregnancy
(0) Comments • (0) Trackbacks • Permalink
