Janene Oleaga, Esq.
Egg Donation Contracts Explained
What will be included in your egg donation agreement? A quick overview.
If you are an egg donor or a recipient parent, below is a short list of what should be addressed in your egg donation contract, and important factors to consider when preparing for the legal stage of your egg donation arrangement.
Closed Donation vs. Identity-Release Donation vs. Known (Directed) Donation
First and foremost, what kind of donation arrangement are you entering?
In the past, it was more common for egg donors to remain anonymous and enter into closed (anonymous) egg donation agreements. The recipient parents matched with the egg donor through an egg donation agency or matching program and their identities were kept confidential by the lawyers and medical professionals involved in the donation arrangement.
A more recent trend in egg donation is for clients to request identity-release donors. Identity-release egg donors remain anonymous to the recipient parents during the egg donation process, but agree to share their identity with any resulting child(ren) who may elect to contact the egg donor at some point in the future. With donor conceived people now sharing their experiences surrounding their desire to know the identity of their genetic originators, identity-release egg donation arrangements are becoming increasingly common.
Do you as the recipient parents desire for the egg donor to be available to speak with your child(ren) in the future? Do you as the egg donor desire to allow for any child(ren) born from your donated eggs to be able to contact you at some point in the future? If so, when? In order for identity-release egg donation arrangements to work, the egg donor and recipient parents must provide the egg donation agency or matching program with updated contact information or sign up for the Donor Sibling Registry. The Donor Sibling Registry is a website and non-profit U.S. organization serving donor offspring, sperm donors, egg donors and other donor conceived people.
A Word About Known (Directed) Donation
Of course, donations between sisters, cousins, and friends, are also customary in the world of third party assisted reproduction. When the parties to an egg donation arrangement know the identities of each other party, we refer to the arrangement as a "known" or "directed" egg donation arrangement. It's also not out of the ordinary for recipient parents and potential egg donors to match openly, sharing their identities from the start.
Known (Directed) Egg Donation comes with a host of other considerations that must be discussed with the parties during contracting, including defining expectations surrounding the roles, obligations, and rights of the parties both presently and in the future.
Regardless of which arrangement you choose to pursue, your egg donation contract should reflect the specifics of your arrangement. Be sure to express your desires to your family formation attorney so they may ensure your intentions are accurately reflected in the terms of your egg donation agreement. Gamete donation is a specialized area of law. It is important to work with an attorney who is experienced in third party assisted reproductive arrangements.
Future Contact, Confidentiality, and Privacy Rights
Regardless of the type of egg donation arrangement you are entering, one of the most important factors to address are the expectations of all parties post-birth. Privacy rights of both the egg donor and the recipient parents are important to consider and address, along with the rights of any donor-conceived child to know their genetic origins.
What are the parties' expectations surrounding future contact with one another? Do all parties agree to share information about the child's genetic origins with the child? Will everyone in the recipient parents' family be made aware of the donation arrangement? What will future contact look like among the egg donor and any resulting child? How will these decisions affect the potential future child(ren) of the egg donor? These are all important considerations when contracting.
Egg Donor Compensation
In the United States, controlling authorities have stated it is ethical to compensate egg donors for their time, inconvenience, and discomfort. Compensation varies and is a important factor to address at the outset of any egg donation arrangement.
As an alternative to compensation, some egg donors elect to split their egg retrieval cycle with the recipient parents. This can be a cost-friendly option for recipient parents and provide the egg donor with an opportunity that might otherwise be unaffordable. Of course, this egg donation arrangement comes with an additional set of considerations. Be sure to discuss your cycle splitting egg donation arrangement with both your assisted reproduction attorney and a fertility doctor.
Medical and Psychological Screening
Every egg donation contract should address the egg donor's medical and psychological evaluations and any evaluations to be completed by the recipient parent(s). The American Society for Reproductive Medicine (ASRM) provides the following guidelines surrounding the medical and psychological screening of potential egg donors:
preferably between the ages of 21 and 34 years;
no history of hereditary disease;
completion of genetic evaluation and genetic counseling session;
completion of a medical examination including pelvic ultrasound;
completion of psychoeducational evaluation and counseling by a qualified mental health professional; and
proven fertility (desired but not required).
Informed consent of all parties should always be at the forefront of any third party assisted reproductive arrangement. Specific provisions relating to the informed consent of all parties should be included in every egg donation contract. A full explanation of the medical and psychological risks associated with any egg donation arrangement must be discussed with both the egg donor and the recipient parents prior to entering into any legal agreement for egg donation.
It is essential for all professionals involved in an egg donation arrangement, from egg donation agency to fertility clinic to fertility lawyer to ensure the egg donor is entering into the egg donation arrangement voluntarily and without coercion and with informed consent. Informed consent requires that the egg donor have full understanding of the risks, rights, and responsibilities of egg donation arrangements generally, and their egg donation arrangement specifically.
Conduct of Donor Prior to Donation
Both the recipient parents and the egg donor should be prepared to discuss with their lawyer any lifestyle changes and restrictions surrounding use of specific substances for the egg donor to abide by leading up to each donation. These guidelines may slightly differ by agreement and by fertility clinic, but some remain consistent including restrictions on the consumption of alcohol and other prescription and non-prescription medications. The egg donor should be prepared to keep her body in optimal health leading up to any egg retrieval.
Also included in every egg donation contract are provisions reflecting the egg donor's promise to strictly adhere to any schedule for taking medication in anticipation of any egg retrieval. Medications for egg retrieval can include both oral medications and injections. Adhering to any schedule for taking medications leading up to your egg retrieval is important in order to maximize the quality of eggs retrieved.
Jurisdictional clauses exist in every contract. Egg donation agreements are no exception. Your lawyer will explain the concepts of choice of law, situs, dispute resolution, and all other jurisdictional provisions specific to your egg donation agreement. Your contract will also include language addressing which jurisdiction's laws you will follow and how you will address breach and dispute resolution.
Your egg donation agreement may address how the recipient parents intend to secure their legal parentage. At a minimum, the contract should include language of protection that the egg donor will not be held out to be a legal parent of any child born from the donated eggs. Provisions regarding custody and guardianship of any resulting child in the event of the death of the recipient parents' should also be included to further protect the egg donor from any future responsibilities of legal parentage based on genetic connection.
What Will Happen to Unused Eggs? Unused Embryos?
Your contract should address what will happen to remaining eggs and embryos created with the donated eggs once the recipient parents have completed their family.
The goal of any egg retrieval, for egg donation or otherwise, is to get an adequate number of quality, viable eggs. More quality eggs retrieved correlates with better odds for a viable pregnancy. Sometimes this results in the creation of more embryos than the recipient parents intend to use for their family building.
But what happens to remaining eggs and remaining embryos after recipient parents have finished growing their family?
Recipient parents may desire to discard any unused eggs or unused embryos created from the donated eggs. In other cases, recipient parents may desire to re-donate any unused eggs or the embryos created with the donated eggs to another family for their family building. Does your contract limit the ability to donate remaining eggs or embryos created from the donated eggs? Does your contact contain a provision providing the egg donor with first right of refusal to any remaining eggs? Does the egg donor consent to a re-donation of the donated eggs? What are the egg donor's expectations surrounding recipient parents' donation of remaining embryos created with the egg donor's donated eggs? Does the egg donor desire to be contacted about any future donation involving her genetic material?
As an egg donor, do you agree with your genetic material being re-donated? Do you want to preserve the right to be contacted regarding any re-donation of remaining eggs or embryos created from your donated eggs? Do you want the option of having first right of refusal to any remaining eggs once the recipient parent(s)' family building is complete?
Ensuring all parties involved in an egg donation are on the same page is essential to a successful arrangement. Take time to gain clarity surrounding your expectations - both during the donation process and in the future. If you find yourself in a re-donation situation, whether you are an egg donor or a recipient parent, it is imperative that you seek legal counsel regarding your rights and obligations.