By Catherine Tucker, Managing Attorney, Law Office of Catherine Tucker – Providing Family Building Solutions in New Hampshire and Massachusetts – and a speaker at RESOLVE New England’s upcoming 20th Annual Fertility Treatment, Donor Choices, and Adoption Conference on Saturday, November 2, 2013.
One thing I often hear from recipients is “I don’t need a contract with my sister/cousin/best friend who is donating her eggs to me, right? I know she won’t ever try to take my child away!” Well, I don’t disagree—the chances of any egg donor wanting to parent the resulting child are slim. So, then why bother with an egg donation agreement?
Of course, every egg donation agreement will address the fact that the donor is giving up her rights to the eggs and resulting children. Having these intentions set out in a written document that is signed by both the recipients and donor is an important legal protection to the participants because there is simply no better way to document your mutual intentions. Clearly documenting your mutual intentions is important because the law in this area is still developing and you don’t want to be caught up in a preventable dispute. The law treats agreements directly between the participants differently than those made through an intermediary, such as your fertility clinic, and thus the forms you fill out at your clinic are not an adequate substitute.
A comprehensive agreement will also cover other very important issues.
Your privacy is very important to protect. You may not want the entire world to know that you are undergoing treatment right now. Or you may prefer to only tell people that you are undergoing IVF, rather than sharing your decision to use donor eggs. Maybe there are certain people in your life, perhaps your elderly grandmother or your conservative uncle, whom you would prefer not be told about your use of donor eggs. Perhaps you don’t mind sharing your use of donor eggs with your family, but you would prefer to keep the identity of your donor private. Recipients’ views on privacy can run the gamut from wanting to shout about it from the rooftops to preferring to keep the information completely private.
And, of course, you also want to be able to control the timing and manner of how your future child learns about the egg donation. If you choose to tell your child about the details of his conception, you want to be sure that you can disclose this to him in an age appropriate manner at a time that you decide is best. You certainly don’t want him hearing about it for the first time from his cousin at a family picnic!
Likewise, your egg donor probably has similar privacy concerns. As part of the screening process, she is required to disclose all sorts of personal information to the medical team, and she may not wish for this private information to be shared with others in her life. She may also not wish for certain family members or friends to know about her role, or may wish to delay telling them until after the child is born.
Dealing with these privacy concerns can be tricky when your donor is a family member or a close friend. After all, you need to strike a balance between allowing your donor to share information about her participation in the process with your need for privacy and control over what your child knows.
To protect everyone, a legal agreement should spell out in detail the parameters you mutually decide upon with regards to sharing such private information. Many recipients and donors find that meeting with a mental health counselor can help them sort out what would work best for their particular situation. The follow up to the mental health piece is to put these kinds of details into a written agreement.
Another issue to think about is that it is possible that there might be extra embryos remaining after you have concluded medical treatment. You have many choices for what to do with these embryos, including disposing of them, donating them to research and donating them to other patients. It’s important that the donor agree to the possible options that you might choose down the road. After all, some donors feel that they are participating only to help you build a family, and don’t feel comfortable having their genetic material used by someone else. Other donors don’t feel comfortable with any embryos being discarded, and may insist that the embryos be donated to other patients. Again, these are issues best discussed with your mental health counselor, and your mutually agreed upon decisions can then be incorporated into your written agreement.
Financial considerations also need to be addressed in a legal agreement. Many clinics require, and it certainly is good practice, that recipients purchase a special insurance policy designed to cover expenses associated with unexpected complications to the donor. While such complications are rare in a properly managed cycle, it’s important that everyone be financially protected just in case, as these medical bills can add up very quickly. The problem is that these insurance policies may not be valid unless the recipients have a contractual obligation to pay for such expenses. A well-written contract can thus provide financial protection to all the participants by triggering the underlying requirements that allow this kind of insurance policy to cover these unexpected medical bills.
In addition, the agreement can clearly spell out exactly what reimbursement will be provided to the donor. Will the donor be reimbursed for her lost wages? Will the donor’s companion who accompanies her to the egg retrieval be reimbursed for lost wages? Will the donor be reimbursed for travel to routine appointments? For travel to the egg retrieval? For meals while traveling? Having these kinds of specifics written out beforehand can avoid disagreements down the road.
It’s true that a written agreement is an extra step in an already expensive and complicated process. But the benefits to both donors and recipients make it a step that you shouldn’t skip.
This blog post is for general information only and should not be construed as legal advice or the formation of an attorney/client relationship. Please don’t attempt to solve your individual problems based on this information as slight changes in factual situations may require a material variance in the applicable legal advice.