The Alabama Supreme Court’s in vitro fertilization ruling this year, which held that frozen embryos should be considered children, raised a long list of questions for people worried about their future fertility treatments. My colleague Tara Siegel Bernard and I attempted to answer many of them in February.
But a few unusual ones linger for people all over who want to explore every option. What does the law say about what you can and can’t do with your embryos? Can you sell them? And if you donate them — say, to a university for research — can you take a tax deduction?
Straightforward answers to the questions about selling and donating are elusive.
It is not clear how many human embryos sit in storage across the United States, but plenty of people who put them there worry about losing control over them. Court cases like the one in Alabama, which all but shut down I.V.F. treatments there temporarily, will do that to a person. So will the increasing restrictions on abortion in many states — and the concurrent discussions of when life begins.
It may make sense to act pre-emptively, if you possibly can. But to do what?
Selling embryos seems outlandish, though it may not violate federal law. The 1984 National Organ Transplant Act outlaws the sale of things in or from the human body like kidneys, livers, bones and skin, but it makes no mention of embryos.
All legal considerations aside, there may not be a big market for anyone seeking to sell embryos. Plus, many potential sellers will probably be thinking hard about the feelings of any potential child and the questions that child might have years later.
“The voice that hasn’t been heard is the voice of the children,” said Dr. Sigal Klipstein, a physician and chair of the American Society for Reproductive Medicine’s ethics committee. “They may be the biggest stakeholders.”
Then there is the matter of a possible tax deduction for donating embryos to a university for scientific research. The Internal Revenue Service declined to comment on the matter, and it does not appear to have issued any guidance that is directly on point.
Anyone who wishes to take a deduction anyway and potentially pick a fight with the I.R.S. would need to consider at least three questions, said Tessa R. Davis, a professor at the University of South Carolina’s Joseph F. Rice School of Law.
First, are embryos property, as opposed to the product of a service offering? Second, if they are property, how do you classify the asset given the varying tax treatments for different types of assets? Classification alone can shape the size of the deduction.
Finally comes a particularly thorny question: What is the fair market value of an embryo?
This leads to other questions: How might the value depend on what it cost to create your embryos? What about the cost of maintaining them? Do you subtract a proportional amount for any embryos you implanted — or do you do so only if implantation resulted in a live birth? One of the many reasons universities might not send a standard charitable confirmation letter to people who donate embryos is that those notes usually spell out the value of the donation.
Professor Davis has devoted her scholarship to questions in this general vicinity, but she has few answers here. “The short answer is that there is very limited and unclear guidance from the I.R.S. that is not always internally consistent,” she said. “The very short answer is, ‘Who knows?’”
Another question that legal experts ask about the deductibility of frozen embryo donations is this: Who might want to be involved in an argument over this deduction in federal court?
The answer may surprise you. “If you assume that embryos are property and they have value, then you’re off to the races with someone trying to intervene and say: ‘I.R.S., stop! These embryos aren’t property — they are human beings in cryogenic nurseries,’” said Susan L. Crockin, a lawyer in Washington and an adjunct professor at Georgetown University Law Center, where she teaches assisted reproductive technology law.
In other words, you may not get a chance to win your argument about deductions. Third parties could successfully claim legal standing to intervene in the case. Once they do, they could try to persuade a federal judge to shut the case down by declaring that embryos are people and not property.
For now, donating embryos to science is a thing you can do. But to someone who believes that embryos are indeed people, a federal court case over whether any such donations are deductible is an opportunity to advance the cause of fetal personhood.
Someone who wants to preserve abortion rights, however, may not want to be in the middle of that.
