|
EXPLORING THE OPTIONS:
Donation Agreements
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.
© 2005 Miracles Waiting
This
page was compiled based on research by non-attorneys and should not be
construed as constituting legal advice. Miracles Waiting, Inc.,
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.
The
following list of state laws addressing embryo donation is not
guaranteed to be complete or up-to-date, and should not be relied upon:
OTHER STATE LAWS ADDRESSING EMBRYO DONATION:
CALIFORNIA
Statute 125116
FLORIDA
Statute 742.14
LOUISIANA
Statute 130
NORTH DAKOTA
Statute 14-18-04
OKLAHOMA
Statute 556
TEXAS
Statute 160.702
|
