Babies or blastocysts, parents or progenitors? : Embryo donation and the concept of adoption
University of British Columbia
Master of Laws - LLM
Donating embryos to third parties who might otherwise have difficulty achieving pregnancy began in 1983, but the term "embryo adoption" surfaced as a descriptor only recently. To some, "embryo adoption" is merely a misnomer coined by anti-abortion advocates to enhance public support for the legal rights of fetuses and embryos. However, the concept of "adopting" an embryo is becoming a social fact, despite legitimate concerns about terminology, and may provide insight into the actual working of embryo donation (ED). For ED to be legal adoption, progenitors must be parents, and blastocysts must be babies. This thesis examines whether either proposition is true, legally or socially, taking account of the feminist literature on reproductive technology (RT) and adoption. Since ED is not about perpetuating genes, involves gestation and childbirth, and has less exploitative potential than both adoption and IVF, it could be a more feminist option for non-coital parenthood. Viewing ED through Canadian law on parentage exposes several inconsistencies and recent trends that overemphasize genetic ties. Historically, neither legal maternity nor paternity were based solely on genes. The thesis concludes the legal parentage of offspring from donated embryos might be uncertain in Canada due to a societal bias towards genes that affects jurisprudence, but is unlikely to be attributed to the progenitors once a baby is born. Progenitors are probably not legal parents. Many RT users prefer to avoid the appearance of adoption wherever possible; pre-conception intent to parent is the preferred public presentation of family formation. Studies of embryo and gamete donors and recipients demonstrate gender differences but some donors believe they are parents, and some recipients agree, even when asserting their own parental status. However, it is still unclear how different people really regard their embryos (as children? property? mere cells?) and how this affects donation behaviour. Ironically, insisting that embryo creators are parents in the "embryo adoption" construct may promote the alternative family constructs favoured by some feminists; that is, progenitors may simply be one type of parent in a world where multiple parents, sometimes with different roles, are gaining acceptance - if only for a minority.
Law, Peter A. Allard School of