Family Law

Is Andy Cohen’s Unusual Plan For His Embryos Even Legal?

Conceiving with our own genetic-sibling embryos may be the next level of assisted reproductive technology acceptance.

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frozen embryo human embryos cryopreservationLast week, I was reading the New York Times. Wait, sorry, I mean People Magazine. In the magazine, I noticed this report that Andy Cohen, a TV host and the producer of all our favorite guilty pleasure shows, had an unusual plan for his remaining cryopreserved embryos.

Cohen, who is currently a single dad of two, conceived his children with the help of egg donation and surrogacy. He appeared on a radio program hosted by former star of Bravo’s “Flipping Out,” Jeff Lewis. (Lewis is also a father by way of egg donation and surrogacy … and was even sued by his surrogate!) In response to a question about his remaining embryos, Cohen said “You know what I’m thinking — this is crazy — but if either of them cannot have kids, maybe in 20 years they’ll defrost their sibling and raise them. Is that a weird thought?”

Is That A Weird Thought?

In short, yes, for the time being. Most of us have a visceral reaction, or at least feel a bit uncomfortable, with the idea of someone giving birth to their own sibling. But technically, it isn’t completely new.

Back in 2011, a Texas probate court was faced with the question of what should happen to the 11 embryos of a murdered couple. The couple’s sole heir was their surviving 2-year-old son, conceived through IVF, and a full-genetic sibling to the remaining embryos. The probate court struggled with the question of whether embryos are property under the law and whether they, therefore, ought to be inherited by the 2-year-old, just like his parents’ other property.

The judge concluded that embryos, while not strictly treated as property under Texas state law, should be inherited by the boy to decide what to do with them when he turned 18. He could then work with a surrogate to deliver his embryonic siblings, or donate the embryos to others. Alternatively, he could donate them to research, or discard them. Tough choice.

New And Usual Forms Of Conception

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While egg, sperm, and embryo donation, as well as surrogacy, have become common place in the United States, they weren’t always that way. The first person conceived via IVF —  a procedure that millions of people worldwide now rely on to have children — is only 43. The outcry from that time were fears of a science-fiction future with “test-tube” babies.

We have generally embraced our science-fiction future. In addition to societal acceptance, many states have passed laws specific to, and supportive of, surrogacy and egg and sperm donation, as well as posthumous conception.

So, Back To The Original Question: Is It Legal?

Yes. Cohen can legally donate or bequeath his embryos to his children with authorization for use for conception purposes for their own families. While specific laws on embryo donation are still few and far between (although most states have sperm and egg donation statutes and, technically, an embryo is a combination of sperm and egg), no American law limits a person from donating embryos (or sperm or eggs) to another person based on the recipient, genetically speaking, being a sibling to the embryos. In fact, not only is embryo donation legal, but it is a growing form of conception.

Embryo Donation Is Flourishing

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Many fertility clinics offer their own internal embryo donation programs — matching fertility patients who have completed their families, but have extra embryos and an interest in donating them, to other patients looking at receiving an embryo donation as a path forward. National organizations like Embryo Connections offer tailored embryo donation matching and support. (Disclosure: I sit on Embryo Connections’ advisory committee.)

And organizations like EM•POWER with Moxi, founded by three professionals in the area, each with a personal connection to family formation through embryo donation, offer deep-dive educational resources as well as matching support. (Check out this podcast interview with all three founders.)

I touched base with embryo donation experts on their reaction to Cohen’s potential intrafamily embryo donation. Gina Davis, genetic counselor and founder of Advocate Genetics as well as co-founder of EM•POWER with Moxi explained, “It’s just extremely complicated, and nobody has the answers. Embryo conceptualization and the meaning of genetic ties will shift for people throughout their lifespan, and for a family through the years. So Andy Cohen saying he will donate his embryos to his minor children today may be a bit premature. But it could be a legitimate decision that feels good to him and to his family in the long run.”

Maya Grobel, LCSW/psychotherapist and another co-founder of EM•POWER, remarked that, “We just don’t know how society is going to shift as diverse family forms start to become more common. These are the kinds of conversations we sometimes have at EM•POWER, exploring all the ‘what-ifs’ because we are trying to better understand how people make meaning of their remaining embryos and make decisions for them.”

“Families are donating embryos to one another today, which allows their family members to have children with a piece of their own genetics, for example siblings or cousins donating to one another,” noted Deb Roberts, CEO and founder of Embryo Connections. “Even in more commonly accepted known donation arrangements, psycho-educational counseling is recommended. Parent to child is definitely new territory with a lot of ramifications to consider for the children born of those embryos.”

Is Cohen just ahead of his time? Maybe not. With worldwide sperm counts falling by 50% in the past 60 years and infertility on the rise, who knows. Using donated embryos may quickly become a common course for many couples and parents-to-be, even when the embryos come with awkwardly close genetic ties.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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