Why Florida?
Florida: A Safe Haven For Embryo Donation

Introduction:

The number of frozen (cryopreserved) embryos has grown significantly over the last decades with the increased use of In Vitro Fertilization and improved cryopreservation techniques. These extra healthy embryos may be stored and used in the future to build families. This is not only cost effective for patients trying to conceive, but freezing embryos allows the physician to transfer fewer embryos at a time to minimize multiple pregnancies.

Many of these patients decide to not personally use their embryos. Additional choices as to their disposition can include discarding them, providing them for scientific research and donation. It is this latter choice that raises several interesting legal issues. The goal of this paper is to review how Florida legally views the embryo donation process and why Florida may be considered a safe haven for embryo donation.

Embryo Donation Legal Issues Across the U.S.A:

The laws that regulate embryo donation are state specific; that is, what applies in New York, California or Ohio, etc., may not apply to Florida. Some states have no statutes regarding embryo donation, some actually prohibit it, while only a few are quite accepting and more precise in their statues. When the statutes exist, they often address such issues as relinquishment of donor responsibilities and reimbursement for the donated embryos. For example, payment (as opposed to reasonable reimbursement) is discouraged or banned in a number of states, including Florida. Before undergoing embryo donation, seeking the advice and assistance of a knowledgeable attorney who understands the legal issues may be very beneficial to avoid violation of state laws regarding embryo donation.

Florida’s Statutes:

Regarding payments, Florida Statute (FS) 742.14 states that only "reasonable compensation" directly related to the donation may be provided to the embryo donors. While Florida does not define “reasonable compensation”, one specific criminal statute states that no person shall sell or purchase a human embryo beyond reasonable costs associated with removal, storage and transportation of the human embryo. [FS 873.05]

Examining the rights of the participants, Statute FS 742.14 states that eggs, sperm and pre-embryos (equivalent to embryos) can be donated and that the donor relinquishes all rights and responsibilities related to such reproductive material as well as the resulting children. Exceptions are made for donations done for the purposes of a preplanned adoption under FS Chapter 63 (the adoption statute) and gestational surrogacy under FS Chapter 742. Unlike many states, Florida actually addresses the transfer of embryos to surrogates.

The second statute that discusses embryos is FS 742.17 discussing the disposition of eggs, sperm and embryos. This section requires that agreements be entered into between the commissioning couple and treating physician regarding the disposition of reproductive material in case of divorce, death or other unforeseen circumstance. This statute neither addresses (nor prohibits) the donation of embryos to any persons (single, a couple or a married couple) nor addresses issues of compensation. A separate agreement through your embryo donation facility usually addresses these specific issues.

Florida courts do not have to approve of an embryo donation unless an interested party requests the court’s participation. It is assumed that the embryos become simply the legal “property” of the recipient.

Existing Florida Case Law:

There is only case cited in Florida regarding Statute 742.14, which approved a donor sperm agreement confirming that the donor had no rights to the child. To date, there are no cited cases involving embryo donation in Florida, but if such a case were to come up, the result would probably be the same. According to the current statutes, anonymous donations would be most encouraged and enforceable.

In the case of an open embryo donation where the patients know each other, the patient who donated the embryos could conceivably change her mind and suggest that the recipient was actually a surrogate. It is for this reason and others that it is extraordinarily important that a written agreement be drafted and signed protecting all parties, using a qualified attorney, before the open embryo donation procedure is performed.

Embryo Donation Legal Agreements:

When embryo donation is done anonymously (often just called “Embryo Donation”), the legal agreements and consents created by an experienced embryo donation facility may suffice between the various parties. Either the recipient and/or the donor may also request independent legal counsel at any time.

An open embryo donation agreement is far more complex and should cover, at a minimum, the following areas:

• Identification of the parties (if the donation is open)
• The treating physician
• Their general location
• The number of embryos donated
• Compensation or reimbursement details (if any)
• Clear relinquishment of the donor’s rights and responsibilities
• Full assumption of all rights and responsibilities of the recipient regardless of any impairment of the resulting child
• Disclosure and acknowledgment of the possibility of medical risk and possible procedure failure
• That Florida law covers the agreement
• Confidentiality provisions between the parties
• Disclosure of results
• Opportunity of access to, or actual use of, independent legal counsel
• Voluntary consent to the donation

Florida, A Safe Haven for Embryo Donation:

Donation of embryos is legally permissible in Florida and essentially statutorily sanctioned. The embryo donors may be reimbursed for related direct costs of the donation. The embryo donors are also relieved of all responsibility regarding the results of the donation or the potential offspring. There have been many of such arrangements in Florida with no reported legal problems thus far.

The donation of embryos is an exciting prospect for both the donors and recipients and Florida law has made Florida a safe haven for such arrangements. If there are any questions or concerns regarding embryo donation, the individual should seek a knowledgeable attorney and physician and ensure that all arrangements are properly documented in a signed agreement.

References:

(1) Florida Statutes Chapters 63, 742 and 873.
(2) Infertility Counseling: A Comprehensive Handbook for Clinicians. Sharon N. Covington, Linda Hammer Burns. Cambridge University Press; 2nd Edition, October 16, 2006. (Page 537)

UPDATED: 04/06/2013