For Emily Ballou, it seemed like the perfect solution. She had always wanted to adopt a child someday—she had been an adoptee herself—but the complications and expenses of traditional adoption were constraining. When Ballou discovered embryo adoption, it seemed easier, faster, and cheaper.
In embryo adoption, an unrelated embryo is placed in a woman’s uterus by means of the same method used in IVF. Embryo adoption can be more reliable than traditional newborn adoption, as it eliminates the risk of a birth mother’s changing her mind. Closed embryo adoptions, wherein information about the adopting family is hidden, also remove the pressure of needing to be “chosen” by the birth family.
After researching the procedure, Ballou tells me, she and her husband contacted the National Embryo Donation Center (NEDC), a faith-based facility (though a person of any faith may donate) promising to match donor embryos predominantly with two-parent, Christian families.
At first, it appeared the Ballous would easily find embryos and be able to use them. However, unexpected legal battles and unclear rules governing embryo ownership in the unregulated U.S. fertility field nearly blocked their path to parenting the embryos they had “matched with” (been approved to adopt) at the NEDC.
Many NEDC embryos are donated anonymously by Christian parents seeking assurance that their offspring will go to Christian homes. Since the NEDC doesn’t require the donating parents to pay storage fees, the embryos are left without families to advocate for them—frozen orphans awaiting a chance at life. This scenario may ease Christian parents’ concerns about their embryos’ fate, but by giving up legal and moral guardianship, they effectively abandon them.
Given how rarely clinics and facilities report their errors and issues, the parents will have no idea what ultimately happens to their embryos. As Adam B. Wolf, an attorney for fertility plaintiffs, said in the Washington Post, “The vast, vast supermajority of mistakes in fertility clinics, the public doesn’t even know about.”
Ballou wasn’t aware of these facts when she pursued embryo adoption, but she knew she wanted to adopt at least one set of embryos through the NEDC. She and her husband soon flew from California to Tennessee to undergo an evaluation to determine whether she was medically cleared to pursue embryo adoption. Once she had passed the evaluation and completed a home study, she was given access to an online database of groups of embryos that were available for adoption.
The Ballous worked with Dr. John Gordon, a pro-life IVF specialist, who was the owner of the IVF clinic affiliated with the NEDC. Gordon had purchased the clinic in 2019 from NEDC founder and president Dr. Jeffrey Keenan.
But during the Ballous’ treatment, Gordon and Keenan parted ways, with Gordon moving into a new facility directly behind the old location, while Keenan opened his own clinic thirty minutes away in a different city.
As a result, embryos matched to Gordon’s patients—those patients who wanted to stay with him—were suddenly in limbo when he withdrew from the NEDC. Ballou had never worked with Keenan and says she wished to continue with Gordon, with whom she had a close and comfortable relationship.
Because frozen embryos are classified as property in forty-nine of fifty states, they have no right to life. Their status is loosely regulated and rarely monitored, with the result that little legal guidance exists for resolving disputes around ownership or parentage. In consequence, donated embryos and embryos frozen indefinitely with unpaid storage fees are at risk of destruction, loss, or misidentification. Heritage Foundation researcher Emma Waters calls the U.S. the “wild west” of IVF, surrogacy, and embryo adoption due to this lack of oversight.
Susan Crockin, a reproductive law expert at Georgetown University, told the Associated Press in 2019 that the courts view an embryo as something (in the AP’s summary) “between person and property.” For example, it’s uncommon to allow one spouse to use an embryo over the other’s objection. In other words, the courts have determined that the right of one person to avoid having additional children takes precedence over the right of the other to use the embryos. Although the embryo is legally viewed as property, the courts have been reluctant to permit its “use” without the permission of both parents.
The United States’ unregulated IVF and surrogacy industries treat human embryos as disposable commodities, creating multiple ethical and legal dilemmas. Not since the nineteenth century have human beings been classified as property. And the result—even setting aside questions of human dignity and the sanctity of life—can be a legal nightmare for those caught up in it.
In Ballou’s case, she had matched with her embryos, which Gordon’s clinic stored on behalf of the NEDC. However, “matching” is not a legal concept; it operates on something more like the honor system. Thus, when Gordon announced his decision to separate from the NEDC, the nonprofit initially informed Ballou that her embryos could not move with Gordon to be stored at his new IVF laboratory and clinic.
Because these embryos had been donated and were no longer under the stewardship of their biological parents, the NEDC did “own” them as legal property of the nonprofit. They were also the children Ballou had adopted through the NEDC. To her, they weren’t replaceable.
Ballou had used the NEDC because it was faith-based, so when the nonprofit claimed her embryos as “property,” it was “really kind of gross,” she tells me. The entire purpose of the NEDC was to “give these tiny little frozen embryos a chance.”
“If we’re going be perfectly honest, in my opinion, they’re God’s embryos, so why view them like property?” asks Ballou.
Following last year’s Alabama case, wherein the accidental destruction of embryos was declared “wrongful death,” the questions of embryo ownership and the classification of embryos as “property” are more important than ever. In Alabama, the Wrongful Death of a Minor Act encompassed all unborn children, no matter their age or location. And the parents who had been awaiting the frozen embryo transfers understandably felt that their children had been killed.
Ballou felt the same about her embryos. After a mediation agreement between Gordon and Keenan, she was granted the right to move her embryos and is now pregnant.
Gordon disagrees with Keenan’s view of the embryos as the property of his organization. “One of the reasons I chose to disaffiliate with the NEDC was the question of whether any organization, even a faith-based one, can legally own an embryo, especially those embryos that were adopted by patients pursuing open embryo adoption as opposed to closed or anonymous embryo adoption,” he tells me. “This is not a God-honoring way to treat embryos with dignity or adopting parents as people with autonomy.”
In response, NEDC Marketing Manager Mark Mellinger argues that embryos do not belong to patients until they receive their frozen embryo transfer (FET). “Until that point, the NEDC remains the legal custodians and caretakers of the embryos, and that has always been the case,” Mellinger tells me. “This is clearly stated verbally when our team meets with patients and in NEDC paperwork given to all patients.”
NEDC president Jeffrey Keenan says,
The most respect we can show the embryos is to make sure they are well provided for and given the best chance of coming to birth. The NEDC has always carefully vetted its providers to ensure that happens.
This is also a commitment that we make to the donors, who count on us to steward the care of their embryos in the most respectful and prudent manner.
Keeping donated embryos under NEDC “care and stewardship” is the norm. The NEDC made an exception for Ballou, allowing her to take the embryos she had matched with, to “show care and compassion for patients caught up in a difficult situation.”
“Donors had entrusted their embryos to the care of the NEDC,” says Mellinger. “It was our firm position that the NEDC needed to remain the legal caretakers and custodians of the embryos.”
Not every client of the NEDC was as fortunate as Ballou. One woman, “Lisa” (who spoke to me on condition of anonymity), spent many thousands of dollars on failed fertility treatments before finding her embryo match through the NEDC. However, the NEDC did not allow her to move her embryos to a different facility, because she had selected her embryos after the August 1 deadline specified in the August 23, 2024, mediation agreement.
In addition, NEDC policy usually prohibits transferring embryos to women over the age of forty-five. Lisa was told that although she had recently marked a birthday that put her over the age limit, she would be allowed to use her embryos, provided she agreed to undertake the transfer with Dr. Keenan. She declined.
“Per the mediated agreement, affected patients were correctly told they would not be able to move forward with these embryos if they chose to go with Rejoice Fertility [Dr. Gordon’s facility],” says Mellinger.
Lisa agreed that the NEDC had a right to maintain this prohibition, but she feels they shouldn’t have. As a result, her “reserved” embryos, which she dreamed would be her children, were left “stuck” in a tank. She is still trying to match with other embryos and fulfill her dream of becoming a mother.
Frozen embryos may be the most basic form of human life, but they are, as any textbook confirms, human beings. Yet in nearly every state, they are considered “personal property.”
In a troubling 2023 case, a Virginia judge used a nineteenth-century law, originally meant to regulate slaves, to rule that frozen embryos could be classified as property. The embryos, in this case, were part of a divorce settlement, with the wife seeking to use them while the husband opposed their use.
The judge’s use of this precedent illuminates the larger society’s view of embryos: as members of some other species. As the ethicist Charles Camosy puts it: “Imagine a human being who is a captive, an orphan, and a (quite) little child that the surrounding culture deems a non-person all in one.”
In a 1989 Tennessee case, wherein a divorcing couple argued over the rights of their frozen embryos, Jerome Lejeune, professor of fundamental genetics at Medicine of Paris, testified concerning the concept of frozen embryos as “property”: “I would say that science has a very simple conception of man; as soon as he has been conceived, a man is a man,” said Lejeune. The American College of Pediatricians corroborates this understanding: “A unique human life starts when the sperm and egg bind to each other in a process of fusion of their respective membranes and a single hybrid cell called a zygote, or one-cell embryo, is created.” This embryo, writes Robert P. George in Human Cloning and Human Dignity, “is a whole living member of the species Homo sapiens in the earliest stage of his or her natural development.”
Even those who would decline the ultimate conclusions of Lejeune and George often hedge on the issue of an embryo’s ultimate value. “I don’t think an embryo is a person, but I do think an embryo deserves special status,” West Coast Fertility Center owner and physician Dr. Vitaly Kushnir told the Washington Post last year.
America’s legal language needs to catch up. Frozen embryos left over from thousands of successful IVF cycles are being kept in limbo, with no sure pathway to birth. The fate of millions is unrealized, partly because regulation of the fertility industry is haphazard. And when human embryos become a source of profit, unsafe practices, legal battles, and exploitation will arise.
For fertility clinics in the U.S., accreditation and inspections are neither required nor enforced. The 1992 Fertility Clinic Success Rate and Certification Act required clinics to report data. But without penalties for non-compliance, we lack insight into what happens behind the clinics’ doors.
Without standards, frozen embryos are left unprotected. The American Society for Reproductive Medicine highlights errors in cryostorage, such as mislabeled or unlabeled embryos, poor inventory records, and insufficient storage tank tracking. Lack of oversight has also led to at least one case of the wrong embryo’s being transferred, and to a freezer malfunction that destroyed four thousand eggs and embryos.
If frozen embryos are property, they can be owned by a business entity. When biological parents donate their embryos to the NEDC, they “have signed away their rights to them, and we become the legal caretakers of the embryos,” says Mellinger.
Unlike some other clinics, which rely on donor-paid storage fees to keep embryos frozen, the NEDC is “committed to preserving all embryos until they are adopted.” Other facilities, including Embryo Connections, Nightlight, and Shady Grove Fertility, confirm to me that they require storage fees to be paid by biological families until adoption.
However, for patients unwilling to donate their embryos for adoption, it is common to stop paying those fees, which can range from $500 to $1,500 annually. The clinics that store these embryos are often left wondering what to do next.
Some clinics say that up to 18 percent of their embryos will ultimately be abandoned due to nonpayment of storage fees. When this happens, clinics often store the embryos indefinitely. With no paperwork granting legal permission to destroy the orphaned embryos, facilities risk lawsuits if the parents ever come back demanding their “property.” In consequence, many embryos languish without a destination for years.
Craig Sweet, medical director of Embryo Donation International, published a study showing that at least one-third of IVF cycles result in excess embryos, and that up to 24 percent of patients ultimately destroy them by choice or abandon them by nonpayment of storage fees. When parents stop paying storage fees, the clinic must decide how long to keep the embryos frozen. According to Sweet, embryos in storage might stay as they are “for centuries” if clinics don’t dispose of them.
Today, there are an estimated 1.3 million frozen embryos in the United States. (The number is not certain because of a lack of reporting requirements.) The American Society for Reproductive Medicine says that when patients have not paid their storage fees and there has been no contact, facilities may thaw the embryos in preparation for transferring them to other adopters—but they may not transfer them without explicit written permission from the previous owners. Thus, “unpaid for” embryos have no one looking out for them.
Most families with frozen embryos do not consider the embryos “people,” and yet they still struggle to let go. Often, their feelings are contradictory and confused. As one woman in a forum put it, “I know the embryos are not babies . . . but I’m so sad at the thought of those tiny blobs defrosting and disappearing.”
Another, who described herself as “not religious,” said she feels bad thinking that “the embryos could have wound up as our child and it would feel like we were discarding two of our [daughters].”
When people become “property,” the results can be surreal. In one example, reported by the New York Times, one couple was shocked to receive a storage fee invoice for frozen embryos they had been told didn’t exist for more than twenty years. After undergoing IVF and successfully birthing one child, they had been told none of their other embryos survived the process. It may have been an honest mistake by the staff, but two decades later a belated inventory turned up two vials containing their frozen embryos on the floor of a cryo tank.
In the interim, the couple had lost their chance to conceive again. Paperwork for storage fees was nevertheless filed and sent to them, as if no time had passed.
Fertility technology has given millions of people the opportunity to create families, even as it devalues human life. Doctors create excess embryos to maximize the chances of a healthy baby, but the embryos left frozen are often treated as mere possessions.
The IVF industry has also commercialized “double donor” IVF, wherein adoptive parents select an embryo created from anonymously donated egg and sperm—a process that raises numerous ethical concerns about that child’s right to knowledge of and relationship with their biological parents.
One case displays the problems that can result. A fifty-one-year-old man living with his elderly parents hired a surrogate to carry embryos he had adopted. When his surrogate became pregnant with three babies, he asked her to abort one for “financial reasons.” The surrogate, Melissa Cooke, refused to abort and offered to raise the third child herself. The man said no and ultimately took home all three, and Cooke never saw them again.
Neither the man nor Cooke was biologically related to the three children. Yet the man was legally allowed to leave the hospital with his “possessions”—no background check required. They were “his,” but how and why?
Bloomberg reported on another dramatic case. After businessman Greg Lindberg’s ex-wife got custody of their three children, Lindberg wanted children that could never be taken away from him. Bloomberg alleged that he “conned” young women into donating their eggs and signing over their parental rights to him in exchange for millions of dollars. He now has sole custody of at least twelve children.
Lindberg has denied the allegation of coercion. “We went to great lengths to ensure every donor was fully informed and entirely comfortable with their decision,” he said in a statement. “The suggestion that anyone was coerced is an outright lie.”
In 2024, a Nashville fertility clinic was shut down after the Tennessee attorney general launched an investigation into Dr. Jaime Vasquez for allegedly neglecting protocols, safety measures, and record-keeping. Patients at his clinic lost access to their “reserved” embryos and weren’t told whether they would ever get them back.
Court records obtained by the Daily Mail establish that, according to public health inspections, embryo storage tanks at Vasquez’s clinic weren’t monitored for temperature, and there was no alarm system to alert workers if the temperature reached an unsafe level. The Daily Mail reports that “Vasquez was spotted opening a storage tank containing embryos and sperm without the proper protective equipment on,” and that there was “broken glass and an ‘unidentified sticky substance’ inside the lab.” The case is ongoing.
The questions of rights and ownership surrounding indefinitely frozen embryos will persist. Tens of thousands more embryos are frozen in IVF cycles every year. Those who are lucky enough to be born by means of embryo adoption may face their own struggles. A study by the Commission for Parenthood’s Future found that “on average, young adults conceived through sperm donation are hurting more, are more confused, and feel more isolated from their families. They fare worse than their peers raised by biological parents on important outcomes such as depression, delinquency and substance abuse.”
Ballou secured her reserved embryos and plans to use more of them after she gives birth. Few embryos are so lucky.
Image by S.Y.M.B.I.O.N.T. Image cropped.
