Media & Events
Egg Donation Takes Legal Planning
By Yifat Shaltiel, Esq.
September 27, 2013
If you have made the decision to grow your family using egg donation, you are not alone. According to the Center for Disease Control (CDC), approximately 12% of fertility patients use donor eggs and embryos.
When it comes to choosing an egg donor, you may wish to proceed with an individual known to you, such as a relative or a friend, rather than an anonymous egg donor. If you choose to grow your family using a known egg donor, regardless of whether it is your relative or a friend, it is important that you enter into a written egg donor contract between you and the egg donor. Having a written contract will ensure that you and your baby will be legally protected, that the egg donor gives up any right to children born from her eggs, and that everyone’s intentions and expectations are agreed to in writing. While everyone may get along very well right now, relationships between family and friends can become difficult and unique if a problem arises or if there are disagreements on issues that were not addressed prior to the egg donation procedure. This is why when it comes to egg donation, proper legal planning is crucial. To do this you will want to seek the assistance of an attorney who specializes in reproductive law.
There are a lot of issues that you will want to discuss with your reproductive law attorney and address in your egg donor contract. For example, one of the issues that you will want to consider in your contract is the risk that the egg donor takes throughout the egg donation process. It is very important that the egg donor understand that there are medical risks that accompany the egg donation process. Perhaps a situation may occur where after the egg retrieval, or even years down the road, the egg donor develops an illness that can be linked to egg donation. It is important that these concerns are explained to the egg donor, that she fully understands the risks, and that you are relieved from liability in such situations.
To further protect yourself, you may want to look into obtaining an egg donor insurance policy. Such a policy can protect against costs related to unforeseen events which may occur two or three months after the egg retrieval, or even immediately after the egg retrieval if the egg donor’s medical insurance refuses to cover such medical costs.
You will also want to clarify whether the donor will be compensated for the medical risk that she is taking in donating her eggs. It is important to note that if you do compensate the egg donor for the risk that she is undertaking, she will be entitled to that compensation regardless of the outcome of the egg retrieval. If she is compensated, then you will need to establish when compensation will be provided. Will she receive compensation the day of the retrieval? Will she receive her compensation in installment payments? Will she receive compensation a week after the retrieval? You will want to decide and include in your contract if she will be reimbursed for lost wages, daycare expenses, transportation expenses, and other expenses. You will also need to understand and state the tax implications of this compensation and who will be responsible for the payment of such taxes. Your attorney and a certified accountant will assist you in answering important questions, such as whether the compensated egg donor must receive a Form 1099 to use in her own tax return preparation, and whether the egg donor fees and expenses would be an allowable medical care expense under a flexible spending account.
While it is important to proceed with egg donation with the hopes of achieving a pregnancy and positive thinking, it is equally important that all issues relating to potential unused embryos resulting from the donor eggs are agreed upon prior to commencing the process. If there are embryos that will not be used by the intended parents, the intended parents will have several choices related to their disposition. These include (1) discarding the embryos, (2) donating the embryos to medical research, or (3) donating the embryos to other recipients. It is important that the donor understand these choices and consent to the various methods of disposition. For example, the donor may not consent to the embryos being donated to a third party. It may not be the donor’s intention to donate her eggs to more than one recipient family. Or the donor, based on her religious beliefs, may not consent to destroying or donating the embryos to medical research. It is critical that the donor understands all of these options, and that any decision relating to the disposition of unused embryos will solely be the decision of the intended parents.
Other issues that will need to be addressed are privacy and the degree of the future contact that the egg donor will have with any children born from her eggs. The donor must understand that she gives up any legal rights that she may have to any children born from her donated eggs. There are many questions related to this that you will want considered in your contract. For example, how involved will the donor be in the child’s life, if involved at all? Do you want the information that you used an egg donor to grow your family to remain private, or will you share this information with other friends and family members? Do you feel comfortable with the donor sharing this information on various social media outlets, such as Facebook? Will the child know that the egg donor’s children are his or her siblings? Will the egg donor be donating her eggs to other recipients? Will you be able to maintain information about all of the egg donor recipients or participate in a sibling registry? It is crucial that these questions are answered and agreed to in writing between you and the donor before you proceed with the egg donation process.
For these reasons legal planning is imperative if you are growing your family using an egg donor. An attorney specializing in reproductive law can assist you in thinking about the issues mentioned here, as well as other issues that should be included in your egg donor contract in order to protect your growing family.