This year’s Alabama Supreme Court ruling on in vitro fertilization, which said frozen embryos should be considered children, raised a long list of questions for people concerned about their future fertility treatments. My colleague Tara Siegel Bernard and I tried to answer many of these in February.
But there are still a few unusual things for people around the world who want to explore all the possibilities. 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 – for example to a university for research purposes – can you claim a tax deduction?
There are no clear answers to the questions about selling and donating.
It’s not clear how many human embryos are stored in the United States, but many people who store them there fear losing control of them. Lawsuits like the one in Alabama, which temporarily halted IVF treatments there almost entirely, will do just that to a person. This also applies to the increasing restrictions on abortion in many states – and the simultaneous discussions about when life begins.
If possible, it may make sense to act preventatively. But what to do?
Selling embryos seems outlandish, although it may not violate federal law. The National Organ Transplant Act of 1984 prohibits the sale of things in or out of the human body such as kidneys, livers, bones and skin, but makes no mention of embryos.
All legal considerations aside, there may not be much of a market for someone who wants to sell embryos. Additionally, many potential sellers will likely think deeply about a potential child’s feelings and the questions the child might have years later.
“The voice that has not been heard is the voice of the children,” said Dr. Sigal Klipstein, physician and chair of the Ethics Committee of the American Society for Reproductive Medicine. “They could be the biggest stakeholders.”
Then there is the question of a possible tax deduction for donating embryos to a university for scientific research purposes. The Internal Revenue Service declined to comment on the matter and does not appear to have issued guidance directly addressing the matter.
Anyone who still wants to take a deduction and potentially fight with the IRS would need to consider at least three questions, said Tessa R. Davis, a professor at the University of South Carolina Joseph F. Rice School of Law.
First, are embryos property and not the product of a service? Second, if it is property, how do you classify the asset given the different tax treatment of different types of assets? The classification alone can influence the amount of the deduction.
Finally, there is a particularly tricky question: What is the fair market value of an embryo?
This raises further questions: How might value depend on what it costs to create your embryos? What about the costs of maintaining them? Do you deduct a proportional amount for all embryos you implanted – or do you only do this if the implantation resulted in a live birth? One of the many reasons universities may not send a standard charity acknowledgment letter to people donating embryos is that these notes usually state the value of the donation.
Professor Davis has devoted her research to questions in this general area, but she has few answers here. “The short answer is that there is very limited and unclear guidance from the IRS that is not always internally consistent,” she said. “The very short answer is, ‘Who knows?'”
Another question legal experts are asking about the deductibility of frozen embryo donations is: Who might want to get involved in a dispute over this deduction in federal court?
The answer might surprise you. “If you assume that embryos are property and have value, then you get caught in the race and someone tries to step in and say, ‘IRS, stop it!’ “These embryos are not property — they are people in cryo-nurseries,” said Susan L. Crockin, a Washington lawyer and associate professor at Georgetown University Law Center, where she teaches assisted reproductive technology law.
In other words, you may have no chance of winning your dispute over deductions. Third parties could successfully assert standing to intervene in the case. Once they do, they could try to convince a federal judge to throw out the case by declaring that embryos are people, not property.
At the moment it is possible to donate embryos for science. But for someone who believes embryos are actually human, a federal court case over whether such donations are deductible is an opportunity to advance the cause of fetal personhood.
However, someone who wants to protect abortion rights may not want to be in the middle of it.
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2024-04-20 09:02:29
www.nytimes.com
