American College of Assisted Reproduction & Adoption Lawyers (ACARAL)

With the advent of IVF, what to do with excess (or leftover) embryos became a surprising problem for infertile couples. Previously, they had no family; now, they have a family of embryos! Embryos that may be donated, without the need for adoption.

After creating a family with a few of the embryos, many of those couples (or single parents) choose to donate the excess embryos to other individuals for conception. This is a real alternative to destruction and donation to scientific research.

The legalities of donating embryos to another infertile person(s) is relatively simple: it involves a contract between the donating and recipient parties. The parties’ identities may be guarded by the respective attorneys. It is viewed as any other donation of genetic material. However, some intermediaries call this process “embryo adoption.” That is a misnomer – no adoption is necessary. As the ASRM stated this month, the correct term is, in fact, “embryo donation”. “Home visits, judicial review and other adoption procedures are not necessary and not appropriate for a patient whose case entails what is most accurately characterized medically as a tissue donation,” stated in December issue of the journal Fertility & Sterility.

Parties with excess embryos should not be dissuaded from giving their unwanted embryos to another infertile person and couples should not be discouraged from receiving them because of inaccurate beliefs that they would have to undergo an adoption.

In this movie, a husband and wife lose a baby and adopt a nine-year-old girl who is “not nearly as innocent as she seems.”

The social work and adoption advocacy community have reacted to the trailer (the movie does not open until Friday, July 24) by calling for boycotts of Warner Bros.  There is little doubt that this film does not cast adoption in a positive light, though I don’t believe it is as reprehensible as they are making it out to be.  It’s a simple summertime horror film, not some incisive documentary about the dangers of adopting an older child.  In fact, the protagonist herself is the one who issues the taunt on the trailer (see below).

In my private law practice, I represent birth mothers throughout New York State quite often.  Maybe it’s just the diversity we have here in New York, but I’ve found that the birth moms I have been privileged to work with really do come from all walks of life.  A representative sampling – over the years – includes an investment banker, a jewelry designer, the daughter of a banker, a waitress, two Orthodox Jewish women, several unemployed single moms, a woman struggling to get off drugs, and a graduate student in the humanities (throw in a hedge fund trader birth father client, too).

To be sure, there is virtually always an economic disparity between the adoptive parent’s means and those of the birth mother.  But what may surprise many people is that not all birth moms are looking to “back up the truck” and load-up on living expense money to the maximum extent permitted by law.  More than a few – with legitimate financial needs and claims – choose to tough it out because NOT asking for the help actually makes them feel better about themselves and the circumstances surrounding their decision to provide their baby for adoption.

It is hard to criticize someone who wishes to adopt, especially when the child of choice is from an impoverished African nation and would otherwise languish in an orphanage or foster home for most, if not all, of his or her childhood.  And I think that Madonna’s heart is in the right place.  But only someone with as public a profile as Madonna (Angelina Jolie, for instance) could stir-up such controversy when attempting to do such good.  While others focus on the fast-tracking of Madonna’s procedural obligations (recently dealt a setback by a Malawian judge), the more interesting issue, to me, is the potential to exacerbate an already damaging (because it is largely true) public perception issue that exists in the world of international adoption: the sense that being selected by an adoptive parent who is choosing among waiting children in an orphanage or foster home is analogous to winning the lottery.  Each child who makes it out is lucky beyond measure and the ones who go unpicked have to stick it out where they are.

But with Madonna, everything is more intense.  She swoops in with her entourage and identifies a child she wants – the others are not selected – but she also provides significant and desperately needed funding through her Raising Malawi Foundation to help make the day-to-day lives of those left behind much better.  So it’s hard to begrudge her what amounts – to some – as a trophy, no?