Don’t Lose Sight of the Trees for the Forest

By: Lauren Gaydos Duffer, Esq.

Creating a family through egg donation, whether you are the egg donor or the intended parent(s) can be a wonderful experience.  However, many people lose sight of the trees for the forest.  The legal process is one of the most important trees that makes-up the egg donation forest.

1.         Selection of an Attorney

Both the egg donor and the intended parent(s) should have their own legal counsel; however, there is no legal requirement or law that both parties be represented.  It is important that the attorneys representing the egg donor and the intended parent(s) have experience in assisted reproductive technology matters.  When selecting an attorney, there are many things to consider but at a minimum be sure to ask the prospective attorney: a) how many years they been handling assisted reproductive technology matters; b) do they belong to any organizations that provide continuing education about assisted reproductive technology matters, such as the American Academy of Assisted Reproductive Technology Attorneys or the American Bar Association; c) are they planning to be out of the office for work or vacation during the time frame that you need to have your contract completed; d) are they available to do your legal review during a time frame that works with your work and personal schedule; e) are they familiar with your agency’s policies and procedures; and f) have they worked with the other party’s attorney before.

2.         Timing of the Retrieval and Start of Medications

Allow time for the legal process.  Keep in mind this is a process and it is of key importance that you understand your rights and obligations in the egg donor intent contract.  Before scheduling a retrieval date or medication start date, be mindful of the following: a) your attorney may have documents for you to sign to retain his or her firm; b) the drafting attorney will need one to two business days (at a minimum) to draft the egg donor intent contract; c) you will need at least 24 hours, but likely closer to 48 hours, to read the egg donor intent contract; d) you will need to arrange and complete a telephone conference legal review of the egg donor intent contract with your attorney; e) if there are any revisions to the egg donor intent contract, there will need to be time to discuss and negotiate the changes; and f) most clinics and agencies will not allow the egg donor to start her medications until the attorneys have provided a legal clearance letter or confirmation that their respective client(s) completed their legal review and understood their rights and obligations.

3.         Things to Think About Prior to Entering into Contracts

Prior communication with your agency about anything of importance to you is of key importance to the legal process being completed timely and efficiently.  At the beginning of the process, be sure to communicate to your agency any feelings you may have about: a) Future Contact-do you want to have future contact with the other party or parties in the future?  If so, do you want to include a requirement that the parties each register with the Donor Sibling Registry or a similar registry?  b) Disposition and Donation-do you have an opinion regarding the disposition of the embryos that are not used, such as donation to medical research or to another couple or to person(s) other than the intended parent(s) you are currently donating your eggs to? c) New Information-do you want future information about mental health disorders or medical conditions that the child born from the egg donation experiences or the egg donor learns about after the egg donation takes place and if so, how would that information be provided to you?

4.         Don’t Cut Corners

The importance of having a legal contract between the intended parent(s) and the egg donor can’t be stressed enough.  While egg donation is a wonderful gift that allows another person or people to create a family, it is still a legal relationship that requires the expectations, obligations, rights and duties of each of the parties to be spelled out clearly.  There are some agencies that don’t believe that there needs to be a direct agreement between the egg donor and the intended parent(s); however, if there is no direct agreement between the intended parent(s) and the egg donor, there is no contractual relationship created that imposes obligations and clarifies the rights and responsibilities of each of the parties.  Often, egg donors and intended parent(s) sign a document with the agency setting out their intention; however, the document signed with the agency, only creates a contractual relationship with the agency not the other party to the egg donation arrangement.  Therefore, if the other party fails to comply with an obligation set forth in the document with the agency, only the agency has the contractual relationship to pursue a breach of the agreement.

Throughout the egg donation process, keep in mind egg donation is a forest composed of many trees.   Be sure that the trees that make-up your forest are all complete.  For more information about contact our office.