The first conception via donated eggs occurred in 1983 and egg donation has become increasingly common since. If you are considering donating or conceiving with donated eggs, it is important to understand the legal ramifications. All parties to the egg donation contract must be aware of their rights and understand the contract and its terms. If you are considering having a child via egg donation, or you are considering donating eggs to allow an otherwise infertile couple the chance to conceive, it is important to consult with a lawyer to fully understand the laws in your state.
Egg Donation Contract
The most important aspect of the egg donation process from a legal standpoint is the contract that the parties enter into regarding their rights and obligations. It is critical that all parties fully understand this contract. If a party were to be allowed to enter into the egg donation contract without a complete understanding of its terms and meanings, the court may elect to change the terms of the contract to reflect that party's understanding.
There is always a presumption that a child is the biological child of the woman who gives birth to him. This means that if a surrogate is used, there must be clear and unequivocal language in the contract regarding how and when the birth mother is to relinquish her parental rights to the child. Even when a surrogate is not used, it is important to include language in the contract that clearly states that while the child is genetically the child of the donor, the donor waives all parental rights.
An egg donation contract should very clearly state that the donor does not retain any rights associated with parenting the child, and that the donor has no responsibility for the child.
What happens if the donor wants the child?
Unfortunately courts have had the opportunity to address issues where a donor has decided that they want to be the child. Donors have made constitutional arguments, arguing that they cannot be compelled to give up rights to their biological children, however courts have almost universally rejected that argument. The very nature of an egg donation contract makes it clear that the parties intend to conceive a child that will be the child of the intended parents. For this reason it is incredibly important that potential donors understand the contract that they are entering into and be completely confident that they are comfortable with their decision to donate eggs.
Medical Screening
The contract between the parties should provide the terms for and require that the donor undergo medical screening prior to donating eggs. This will ensure that no genetic diseases or disorders are passed down. Medical screening is also important to evaluate the quality of the eggs and to be sure that the donor is healthy enough to undergo the egg donation process.
Psychological Screening
Donating eggs can be psychologically stressful, thus it is important that the donor undergo counseling to ensure that they understand and can handle the donation process. The agreement should also address the psychological risks associated with egg donation, and address any counseling or psychological counseling that the donor underwent prior to and during the egg donation process. This will protect all parties from claims that the donor was not properly advised and informed on the terms of the egg donation contract.
Ownership of the Eggs
The egg donation contract should clearly address the ownership of all eggs, both used and unused. The contract should clearly specify what is to be done with unused eggs, who has the right to decide what happens to any unused eggs, etc. This is important to avoid disputes and misunderstandings later, and should addressed up front in the egg donation contract. It is also important that the contract address where and how the eggs will be stored, how long they will be retained, and any other considerations that are important to the parties.
Agreement Not to Interfere
The egg donation contract should also contain a provision wherein the donor expressly agrees to refrain from interfering with the parental relationship between the child and the intended parents. This will allow the intended parents to raise their child free from concerns that the donor will attempt to contact the child or otherwise harm their relationship with the child.
Drafting the Contract
It is important that the parties have a well written contract that they are all comfortable with. This will enable the parties to proceed through the egg donation process with complete confidence that they will carry out their intended goal without concerns of custody conflicts and other conflicts that could arise between the parties. It is important the contract address all concerns, and clearly explains all of the intentions of the parties. This contract should not be drafted by the parties, and all parties should consult with their own attorneys to be sure that their rights are protected.
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