Basic Elements of a Gamete/Embryo Donation Agreement
Contributed by Heather E. Ross, Esq.
Ross & Zuckerman, LLP
A legal contract between gamete donor(s) (“donor(s)”) and intended parent recipient(s) (“recipient(s)”) is a necessity for any third party gamete or embryo donation arrangement, whether the parties know each other’s identities or not. The purpose of the legal agreement is to set forth the parties’ expectations and intentions before, during and after the embryo or gamete donation arrangement (hereinafter referred to as “GDA”). GDA agreements should address everything the attorneys believe may be relevant to the parties’ intent. The following contractual terms are typically addressed in GDA agreements:PURPOSE/FACTS:
The agreement should contain a section defining each party and explaining the reason for the GDA and any other facts deemed pertinent to the agreement (name of fertility clinic, name of any matching entity if applicable, genetic make-up of embryos if it is an embryo donation arrangement, how many embryos are being donated, whether the gametes will be cryopreserved, and if so, where the gametes or embryos are stored, etc.). It is important to be very specific about how control of the gametes or embryos will transfer from donor(s) to intended parent(s). Often the transfer is not physical (i.e., the gametes or embryos remain in the same clinic), but ownership transfers upon the signing of the agreement. Sometimes a batch of eggs or embryos (from one donor) are donated to two sets of intended parent(s) at one time, so it is important to designate which eggs or embryos will be transferred to which party (and separate agreements should exist between the donor(s) and each recipient). REPRESENTATIONS AND EVALUATIONS:
Each party should provide representations about his/her health status, and confirm that all of the information provided to the physician, mental health professional, other party or any other professional involved in the GDA is true and correct to the best of the party’s knowledge. If the embryos were created by donated gametes, the agreement should reflect that the gamete donor was medically screened by a physician prior to the creation of the embryos and consented to the donation of embryos to third parties for reproductive purposes. Each party should undergo a medical and mental health evaluation/consultation to ensure that the party is an appropriate participant to the GDA and understands the medical and mental health risks. STATE LAW:
The agreement should reference any state law that may be applicable. Although the majority of states do not have legislation addressing egg or embryo donation, several states do, and if you are applying the law of one of these states you should reference the applicable statute or case law in the agreement and make sure you are in compliance with state law1
. Make sure you are working with an attorney licensed in the state whose law will apply to the agreement.INTENT OF PARTIES:
The agreement should unequivocally set forth the parties’ intent that the recipient(s) shall be the legal parent(s) of the child and donor(s) shall have no rights or obligations to any child conceived. If there is law in your particular state, make sure you are following the requirements of your state statute or case law.
It is crucial that the recipient’s obligation to the embryos/resulting child is irrevocable once the embryos are created (or if an embryo donation arrangement, once the rights to the embryo(s) are transferred to the recipient(s)). Because many states do not have laws addressing egg or embryo donation, the only ‘proof’ a party may have to show his/her intent (should a conflict occur in the future) may be the gamete donation agreement. In arrangements between family or friends, it is not uncommon for donor(s) to request that unused embryos ‘revert’ back to the donor(s) after the recipients have completed building their family, or that the donor(s) be given control to the embryos in the event recipients die or divorce. Drafting an agreement with these requests is tricky. If the donor(s) retain control over the embryos a court may find that the relinquishment of rights was not unequivocal and refuse to enforce the agreement. It is important to advise your clients of these risks and discuss alternative options to attempt to satisfy the parties’ desires while maintaining the integrity of the agreement2
. LEGAL REPRESENTATION:
Each party should have independent legal representation to explain the laws regarding gamete or embryo donation, the legal risks involved, and review and negotiate the gamete or embryo donation agreement. Often the recipients will pay the donor(s)’ legal fees, which may be fine, so long as the donor(s) acknowledge the conflict (i.e., that due to such payment it could appear that the donor(s)’ attorney has some allegiance to the recipients), and agree to waive and never raise it in the future in an attempt to invalidate the agreement. The lawyer should also explain the difference between a birth certificate and a court order, and explain how to obtain a parentage order or adoption after the birth of the child. DISPOSITION OF EMBRYOS:
The parties should consider and memorialize what will happen to any excess embryos that are not used by the recipients. Will the excess embryos be thawed and discarded in a medically appropriate manner, or will they be donated to medical research? Perhaps excess embryos will be donated to another set of intended parent/recipients. If the embryos will be donated to subsequent recipients the agreement might require the initial recipients to enter into an embryo donation agreement with the subsequent recipients (perhaps requiring an exchange of identifying information with the original donor(s), or, if anonymous, an exchange of birthdates)3
. The parties should consider and set forth in the agreement what will happen to the excess embryos should one or both of the recipients die, or should they separate or divorce. FUTURE CONTACT:
The type of contact (if any) the parties intend to have after the GDA should be articulated in the agreement. Some agreements require notice of pregnancy and/or notice of birth. Are the parties planning to disclose the GDA to their children? If the parties decide they are not going to disclose to their children do they have a means to contact each other in the future in the event of a medical necessity? What if one family intends to disclose but another family does not? It is important to remember that the children created by these embryos are not parties to the agreement, and, accordingly, are not bound by any term of the contract, including confidentiality provisions. One question to consider and discuss with your client(s) is whether the child has a right to know that there may be other children living with another family partially or fully genetically related to him/her?4
At a minimum, the agreement should set forth how and when such information can be disclosed. An absolute bar prohibiting intended parent(s) or donor(s) from telling their children about the GDA, or that they may have genetically related ‘siblings’ should be avoided. No matter how strongly a client might feel when entering into the GDA, feelings change, situations change, and a parent should never be forced to lie to his/her child because the parent is fearful of breaching a contractual term.CONFIDENTIALITY:
The agreement should address each party’s right to privacy and set forth any boundaries or limitations with respect to disclosing the GDA to third parties. Although many agreements prohibit disclosure in a public format (i.e., social media networks, news media, Facebook), it is important to carve out an exception to allow parties to communicate with friends, relatives, clergy, medical/mental health professionals and other support networks if they desire. A party should be able to talk to whomever he/she wants about his/her participation in an GDA, so long as he/she does not disclose the other party’s identity absent his/her consent.ASSUMPTION OF RISK:
Every reproductive arrangement includes risks to each party involved. Risks may be immediate or they may occur in the future. Certain risks are foreseeable or known, while others may not be contemplated at the time of entering into the arrangement. Because GDAs consist of relatively new medical technology with scant legal precedent, the importance of making an informed decision of whether or not to enter an GDA is extremely important. Accordingly, a party’s assumption of risk should always be based on an informed decision. Each party should acknowledge that he/she had the opportunity to consult with independent medical, psychological and legal professionals with expertise in third party reproduction, and have had all of his/her questions answered to his/her satisfaction. Only after this acknowledgement should each party agree to ‘assume’ the risks, and release every other party from any physical, emotional, psychological or legal harm that may directly or indirectly result from the GDA.
Consider including in the agreement known risks. For example, the agreement should contain language recognizing that gamete and/or embryo donation is a relatively new medical technology, and the laws are continually evolving and changing. One potential ‘known’ risk is that the laws may change, and as such no warranties or promises can be made as to the ultimate cost, liability or obligation of any party which may be affected by future legislation, court decisions or any other judicial process.
The parties may also want to acknowledge that there is no guarantee the GDA will be successful. The agreement may specify for example, that: (a) not all attempts at embryo transfer result in a pregnancy; and (b) there is no guarantee that a pregnancy which does result will go full term, or produce a healthy child.FINANCIAL COMMITMENTS:
Egg donors are often compensated for their time and inconvenience in donating their genetic material. The GDA should set forth the specific terms of any agreed to compensatory terms, and any compensation should be placed with an independent escrow agent prior to the egg donor starting any medications in furtherance of the egg donation arrangement. Unlike egg donation, there can be no compensation to an embryo donor, as the donor is not being ‘inconvenienced’ or experiencing any pain or suffering. Although no embryo donation contract should provide any compensatory relief to the embryo donor(s)5
, the donor(s)’ expenses may be reimbursed. It is fairly typical for the recipients to pay for the donor(s)’ legal fees6
. In addition, once the agreement is executed, the cost of transfer and/or storage of the excess embryos will typically become the sole obligation of the recipients, who may also pay for any additional medical or mental health testing of any party. Some agreements will offer the donor(s) or their children additional mental health counseling after a child is born via the GDA. If offered, it is a good idea to set forth the parties’ expectations with respect to reimbursement, and place caps on the amount of reimbursement that will be allowed as well as time limits for when recipient’s reimbursement will cease.7 ESTATE PLANNING:
What happens to excess embryos when a party dies? If the parties have expressed their intention in an estate plan, the estate-planning document will dictate the disposition of the embryos. Because most estate planning laws were passed prior to the advancement of medical technology allowing for gamete and embryo donation, should a party die intestate (without a will), the disposition of excess embryos (and inheritance rights of resulting children) may occur in ways not contemplated or desired by the parties. For example, a Texas court determined that a 2-year-old would inherit 11 cryopreserved embryos when his parents died intestate.8
The importance of estate planning documents cannot be underestimated. The parties should require that estate planning documents be in effect by a certain time in the pregnancy (or, even better, at the time the embryos are created and/or transferred). The recipients should name a guardian for the child, attempt to provide financial support for the child, and indicate what will happen to any excess embryos consistent with the terms of the agreement. Both donor(s) and recipient(s) should set forth their agreements regarding future contact and the exchange of information in their estate planning documents. The donor(s) and the recipient(s) should also provide direction (which may be different for each of them) as to how and when to tell the child about the GDA and who they would like to provide this information to the child.OTHER MISCELLANEOUS PROVISIONS:
In addition to the suggested contractual provisions set forth above, most agreements addressing third party reproductive arrangements will also include the following provisions:
- Choice of Law Provision/Venue: providing which state law should govern the agreement in the event of a dispute as well as agreeing to submit to the jurisdiction of a particular state.
- Attorneys’ Fees Provision: allowing the prevailing party to recover attorneys’ fees in any suit or appellate proceeding.
- Informed Decision: having each party acknowledge that he/she is over the age of 21 and believes he/she understands the agreement and its legal effect.
- Resolution of Disputes: requiring the parties to seek mental health counseling or mediation prior to initiating a lawsuit.
- Enforceability, Severability and Survival: expressing the parties’ intent that should a court strike down a provision of the agreement as unenforceable, the remainder of the agreement should stand.
- Notice: setting forth notice requirements.
- Other Agreements: noting that other agreements may exist between the parties (i.e., the informed consent forms), but that the gamete or embryo donation agreement should control the rights and obligations between the parties should there be any inconsistency between any other agreement and the embryo donation agreement.
- Entire Agreement/Modification: a section stating that the gamete or embryo donation agreement is the entire agreement between the parties related to the GDA, and supersedes all prior writings or understandings between the parties, and that any modifications to the agreement must be in writing and signed by all living parties.
- Execution/Counterparts: explaining how the agreement will be signed, and whether it can be signed in counterparts and/or by facsimile or electronic transmission.
- Parties to the agreement: recognizing that any child that may result from the agreement is not a party to the agreement and may not be bound by the terms of the agreement.
In short, the necessity of a well-drafted comprehensive embryo donation agreement is a crucial step for any person participating in an embryo donation arrangement.
1 See, e.g., Fla. Stat. Ann. Sec. 742.11 -742.17; Ga. Code Ann. §§ 19-8-40 to -43; N.D. Cent. Code sec. 14-18-01 – 14-18-07; Okla. Stat. Ann. Title 10,
sec. 556; Tex. Fam. Code Section 160.702; Va. Code Ann. Sec. 20-156 – 20-165; Wash. Rev. Code RCW 26.26; Tenn. Code Ann. § 36-2-401; Wyo. Stat. § 14-2-902 (2015); 13 Del.Code. §8-101; 750 ILCS 46 et seq. (Note: Laws in this area are continuously changing, and this list is subject to change at any time. Make sure you consult with an attorney specializing in third party reproduction in the appropriate state).
One possible alternative is to state in the agreement that the recipient(s) are not prohibited from donating excess embryos back to the donor(s) upon their divorce, death, or when they have completed building their family.
3 Because any children born from a embryo donation arrangement will be genetically related, all parties using the embryos should have some method of contacting each other in the future in the event it is medically or psychologically desirable.
It is important to remember that lawyers are not mental health professionals, and although often faced with psychological issues during representation, the lawyer’s job is to provide legal advice. It may be that the best advice a lawyer can give is a referral to a mental health professional.
5 Federal law prohibits the sale of organs. See, US Federal Organ Transplant Act of 1986.
In addition, the American Society of Reproductive Medicine’s (ASRM) guidelines for embryo donation states that, “the selling of embryos, per se, is ethically unacceptable.” See,
Practice Committee for ASRM SART, 2006 Guidelines for gamete and embryo donation, Fertil Steril 2006;86(Suppl 4):S38-50.
6 If the recipients are paying the donor(s)’ legal fees, a conflict waiver should be included stating that the donor(s) acknowledge their attorney is independent and only representing the donor(s) (despite the fact the recipients are paying the legal fees).
7 For example, a contract may include the following language:
Recipients agree to pay for the cost of Donor’s mental health evaluation and agree to pay up to an additional Five Hundred Dollars ($500.00) for any further mental health consultation sought by donor(s) and/or their children throughout this arrangement for up to sixty (60) days after the birth of any Child conceived using the Embryos.
Report and Recommendations of Master in Chancery, In the Estate of Yenenesh Abayneh Desta, Deceased, No, PR 12-2856-1. Probate Court No. 1 Dallas County, Texas (Two year old inherits 11 embryos to be held in trust until he is 18; parents were murdered and died intestate and without dispositional direction left to the fertility clinic).