While the use of egg donation allows infertile couples to build their families, there are legal pitfalls that can arise in the process. Couples relying upon an egg donor should always consult with an attorney who can advise them of how to best protect the rights of both themselves and their future children.
Mistake #1: Relying on the Medical Consent Forms Signed at the Clinic to Establish Parental Rights
The medical consent forms signed at the clinic are an important part of the process, as they address issues directly related to the medical treatment such as procedures, benefits, risks and alternatives. However, if the clinic consent forms do not meet the exact requirements of the law for your particular situation, then they will not have the desired impact on the legal establishment of parental rights. It’s important to know that the law can be very picky in this regard. For example, the marital status of the recipients, the location of the clinic, the location of the birth and many other factors can impact whether the clinic consent forms are sufficient for your situation. This can result in unintended consequences, such as the intended father not being considered the legal parent under the law or one intended parent not being able to use the embryos in case of the death of the other intended parent. A consult with an attorney familiar with fertility law is important to protect your and your future child’s legal rights.
Mistake #2: Failing to Have a Written Agreement with the Egg Donor
Donor agreements are an important part of protecting the legal rights of all parties because they memorialize the parties’ intentions at the time of the donation. Additionally, donor agreements establish important obligations on the part of all parties. For example, the donor may agree that she will not have contact with the minor child unless the recipients are aware of and approve of such contact.
Mistake #3: Failing to Ensure for the Disposition of any Frozen Embryos
Once recipients have completed building their family, there are many options available for the disposition of any remaining frozen embryos, including discarding them, donating them to another couple, donating them to research or placing them into the recipient mother’s uterus at a time when she is unlikely to become pregnant. Because of the complex legal framework surrounding this issue, medical consent forms from the clinic are insufficient to properly ensure that the recipients’ wishes will be followed in the event of a death or divorce. The best solution is to consult with an attorney who specifically understands the nuances of fertility law.
Mistake #4: Failing to Have a Plan in Place for Future Contact with an Anonymous Donor
Egg donor agreements typically provide that both the recipient parents and the donor will share any hereditary medical information that they may become aware of in the future. This sharing of information can be done anonymously, but it requires the parties to keep an intermediary updated as to their contact information. Planning ahead for such sharing of information can be important to avoid delays attributable to locating a missing party if your child or the donor develops a hereditary medical condition many years from now.
Mistake #5: Failing to Consider the Legal Implications of the Location of Birth
Certain states are considered more egg donation friendly than others. It is theoretically possible that some states would refuse to recognize a recipient mother as the legal mother of the child she gives birth to via egg donation. The U.S. State Department used to do exactly that, and refused to grant citizenship to donor egg babies who were born abroad to United States citizen mothers. And concerns have now arisen for the implications of an Iowa court case finding that “biological mother” means only a genetic mother under Iowa law. It is important for recipients to discuss this issue with their attorney and consider postponing any out-of-state or out-of-country trips until after the baby is born.
Mistake #6: Failing to Understand That the Donor is Not Selling Her Eggs
Donors are not selling their eggs and recipients are not purchasing these eggs. While donors are compensated, best practices require this compensation to reflect donors’ commitment of time, inconvenience, discomfort and risk. As such, donors are compensated the exact same amount, whether they produce 40 mature eggs or only one at retrieval.
Mistake #7: Failing to Include the Donor’s Spouse or Partner in the Process
The donor’s spouse or partner plays an important role in the donor’s compliance with the agreement. Specifically, the donor’s spouse/partner is instrumental in compliance with provisions regarding limitations on sexual activity, confidentiality and future contact.
Mistake #8: Failing to Maximize Available Tax Breaks
Patients using an egg donor may be eligible for tax breaks through employer based plans, such as health care flexible spending accounts, or by claiming itemized medical expenses on their taxes. Careful advance planning can help to reduce the financial burden on recipients. Such advance planning may include spreading expenses across two tax years or by lumping expenses into a single tax year, depending on the recipients’ particular circumstances.
Mistake #9: Failing to Consider the Legal Ramifications of Different Egg Donation Options
There are many different types of egg donation arrangements available including known donor matches, anonymous donor arrangements where the clinic facilitates the match, anonymous donors matched through an independent agency, shared cycles where one donor’s eggs are divided among several recipients, double donor cycles with the resulting embryos split among several recipients, frozen egg bank arrangements, and foreign egg donation cycles to name just a few. Different options will have different legal ramifications with regards to legal parentage, future confidentiality and contact, and the use of any remaining embryos.
Mistake #10: Failing to Consider the Security of the Escrow Account
Matching agencies will typically place the recipients’ funds into an escrow account, to be paid out to the donor as required under the agreement. Recipient parents need to conduct due diligence to ensure that the escrow account is not a sham and that their money is safe.
