What to include in your embryo donation agreement/contract.
It is important for the agreement between donors and recipients to be formalized in a legal contract. Contracts can be as simple or as complicated as you see fit. The main criteria are that they meet the requirements of the donors, recipients, sending and receiving clinics and any applicable state or federal laws.
Normally, the contract will briefly outline the medical procedure to be undergone, and the parties acknowledge their risks. The recipients should release the donors from liability for any medical complications that may arise related to the transfer of the embryos or any resulting pregnancy. Donation requires that donors give up all rights and responsibilities (including, but not limited to, custody, visitation and inheritance) to any donated embryos or child(ren) that may be born as a result of the donation, even if the donors are not successful with their own infertility treatments. Recipients agree to incur full parental responsibilities including custody, financial support, and health care decisions. The contract should address the donor’s relinquishment of rights, and each party’s rights and obligations toward one another and toward any child(ren) born from the embryo donation. The contract should clearly state whether the donation is anonymous, or the parties are known to one another. If any of the parties have agreed to undergo medical testing or screening, participate in a counseling session, or provide additional information (such as a family health history), this should be specified.
The donors and recipients should also discuss any aspects they feel are important to be included in the contract, such as:
Any limitations on the time frame in which DFET must occur
It is currently unknown how long human embryos may be cyropreserved and remain viable, although successful pregnancies have been achieved from embryos which were frozen for 10 to 12 years. Some donors who are concerned about this factor may stipulate that if the embryos are not used within a certain period of time, they will revert back to the donors, allowing them to find a more ready recipient. In most cases, if the quantity of embryos is sufficient, recipients will want enough time to attempt multiple transfers if they are not successful the first time, and may want to attempt subsequent pregnancies with the donated embryos if they are successful. In negotiating such a clause, donors and recipients will have to weigh these factors, and the possibility of unforeseen delays, against the age of the embryos and any other time related concerns.
Whether or not donors will be notified of the outcome of the DFET
Notification of the results of DFET may be made directly or, in some situations, through the clinic. If such a clause is included, it should specify whether the donors want to be notified of the results of each DFET attempt, a positive pregnancy test, confirmed pregnancy at first ultrasound, live birth, or other information such as the existence of a multiple gestation, the gender of any child(ren) born, and/or health of child(ren)at birth.
Whether or not there will be continuing contact between donors and recipients if a pregnancy is achieved, and if so, what level of contact
Donors and recipients who desire some level of ongoing contact may agree to send or receive updates or photos, or they may agree to notify each other of any change in the contact information exchanged, maintaining the possibility for future contact. This will vary with the desires and comfort level of the families involved. Arrangements may be made for future contact to be direct or through a third party.
The method and circumstances under which future contact, if any, may be established between donors and recipients when ongoing contact is not a term of the agreement
In situations where ongoing contact will not be maintained, some donors and recipients make provision for special circumstances that could arise. Such clauses allow contact to be initiated in the event of certain situations, such as an emergency need to request or provide additional medical information. In some cases, donors provisionally agree that they will be willing to meet the child at age 18 if the child desires it. Clauses may specify that contact be made through a third party.
Who will decide what happens to any embryos that are not used
In some cases, once the donation is made, any future decisions regarding the disposition of the embryos will be made by the recipients. In other cases, any embryos not used by the recipients may revert back to the donors, or the donors and recipients may determine together what to do with them
Any conditions under which the contract may be terminated
The contract should clearly spell out any situation in which the agreement between the parties could be terminated prior to transfer of the embryos to the uterus of the recipient, but should specify that it cannot be nullified thereafter.
Please note that while donors and recipients can and often do discuss the issue of multi-fetal reduction or other termination of a pregnancy, no matter what the intentions of the recipients may be at the time of the donation, the constitutional rights of the recipient woman will override any contractual provisions on this matter, and therefore, once embryos are transferred, she will have a non-waivable right to terminate any pregnancy established.
What will happen to the embryos in the event of the divorce or death of the donor or recipient couple?
Unforeseen events may change the willingness of donors or recipients to complete the transaction. It is important to reach a formal agreement about what would happen to the embryos if either of the couples divorces, or if one of the parties dies, before the transfer has been completed.
Reimbursement of expenses related to the embryo donation
The law regarding direct compensation for embryos has not yet been defined in all states; it is illegal in some locations, and specifically allowed by the law in others. However, it is possible that payment for embryo donation could be construed as constituting undue influence or coersion or may be interpreted as a violation of other state laws. The practice guidelines of the American Society for Reproductive Medicine (ASRM) and the ethics guidelines of the American Medical Association (AMA) recommend against the sale of embryos. Donors and recipients would be well advised to seek legal guidance from an attorney specializing in third party assisted reproduction regarding the applicable laws in the states where both parties reside.
Donation is, by definition, an altruistic act. Donors should not expect payment for any portion of the personal medical expenses incurred during their own fertility treatment that resulted in the creation of the embryos, but recipients routinely reimburse them for any-additional expenses related to the donation itself. Recipients normally reimburse donors for legal fees, embryo shipping, any current embryo storage fees, the costs of any medical or psychological screening or retesting of the donors in conjunction with the donation, and any other expenses related to the transaction. The recipients should incur responsibility for the related fees even if there are no embryos to transfer after the thaw. The expenses involved should be addressed in the contract, along with the terms of reimbursement.
How any future disputes will be settled
Although no one plans on disputes arising, it is wise to work out in advance the process through which they would be resolved, and who would be responsible for any related expenses. It is also important to determine which state’s laws will govern the contract, especially if the donors and recipients are residents of different states.
The precise terms of contractual provisions will vary depending on prevailing state law, and the specific requirements of the parties involved. Few states have enacted laws that address embryo donation (see references below). The contract should acknowledge that the law regarding embryo donation is unsettled, unless you and the other couple reside in a state with embryo donation laws. It is important for a lawyer, knowledgeable in donor law, to review the contract to make sure that it is legal and binding. If the embryos will be transferred across state or country lines, the attorney should have knowledge of the laws in both localities.
Under the law, when a woman gives birth to a child, she is presumed to be that child’s mother, and if she is married, her husband is presumed to be that child’s father. However, the possibility may exist that the paternity or even the maternity of the child could be challenged based on a DNA test. To insure this cannot happen in the future, some people consider obtaining a court order to determine parentage prior to donation or birth, or formally adopt the child after birth to further protect their parental rights. To address such issues, several states have adopted or are considering adopting the revised Uniform Parentage Act (2002), which establishes parentage of children born as a result of embryo donation or other forms of assisted reproduction. Where no specific laws exist, it is generally assumed that contract law will govern the transaction. In some states, relevant case law exists, most often related to situations in which a couple who previously underwent IVF later entered into a dispute regarding the disposition of their remaining cryopreserved embryos. Also, whenever laws specific to a given situation do not exist, the court may look at similar laws in related areas. Laws related to other types of assisted reproduction, such as egg or sperm donation or surrogacy, may possibly be considered applicable to embryo donation. Laws prohibiting the destruction of embryos or the selling of babies may also have legal relevance.
As noted by the Genetics and Public Policy Institute in the article, “Legal Environment for Art” (2003), “Disputes over frozen embryos illustrate the struggle within state courts as they alternate between viewing ART as a private matter, to be constitutionally protected and regulated by contract, property, or family law principles, or as a public matter, to be governed by public policy and constitutional law principles. In all cases, the importance of up-to-date and geographically relevant legal advice, along with a written contract, cannot be over-emphasized.
This page was compiled based on research by non-attorneys and should not be construed as constituting legal advice. Miracles Waiting, cannot guarantee that the information contained herein is complete, accurate and up-to-date. It is important that readers consult a qualified attorney to confirm any information provided.
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