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IX. EGG DONATION/CRYOPRESERVATION CONTRACTS
Whether by law or by custom and practice, egg donation contracts are often required by infertility practitioners. Cryopreservation, or the freezing of embryos for later use, is often coordinated in the egg donation contract.
A. Elements of an Egg Donation Contract
1. Identification of Parties
Appropriate parties include the donor, her husband if married, the sperm donor/father, the mother/recipient (the woman who shall carry the child and ultimately be deemed its "mother"), as well as the attending infertility physicians/clinic. The various responsibilities of each should be set forth in the contract.
2. Establish Paternity/Maternity
The egg retrieval should coincide with sperm donation, in vitro fertilization, and placement of embryos into the carrier (generally the woman ultimately to be deemed the "parent" of the child to be born), and, hence, the contract should establish who will ultimately be deemed to be the parents of the child.
3. Establish Procedures to be Undertaken
Egg donation involves a course of medical and pharmaceutical treatment, which generally induces ovulation. The invasive procedure of physically removing eggs from a donor is required, and diagnostic tests (such as ultrasound examinations)assist the medical practitioners in timely retrieving the eggs.
4. Informed Consent
There are risks of the medical procedures to be undertaken, and good practice would dictate that the contract reveal the risks of the procedures to be undertaken.
5. Genetic Disclaimer
Certain diseases or conditions may be known to exist in the donor's family, or may be found within certain populations or ethnic groupings. These conditions should be divulged and the risks assumed by the recipient couple.
6. Relinquishment of Donor's Possible Rights
In the non-surrogacy traditional context, genetic ties to a child to be born are specifically recognized. The genetic mother and father of a child generally have parental rights in relation to the child. To avoid responsibility for rearing the child, a relinquishment is desirable.
This relinquishment is akin to traditional forms of sperm donation where the parent chooses not to be responsible for, nor have any parental rights to, the rearing of any child to be born as a result of the donation. While the technology of egg (oocyte) retrieval is far more technologically advanced than sperm donation, the justification for relinquishment of rights and obligation is quite similar to sperm donation.
In many states, neither the statutes nor case law have resolved the issue of egg donation, and, hence, it is appropriate for the egg donor to contractually waive any such rights.
Additionally, if the donor is married, it would be wisest to disclaim any paternity on the part of the donor's husband.
B. Cryopreservation/Disposal Issues
Embryos may be implanted into the recipient who will carry the embryo to term, or they may be cryopreserved (or frozen for later use). Numerous eggs are generally retrieved during the egg donation process. The surplus is often cryopreserved in the event that the carrier/recipient does not immediately become pregnant in the first cycle of treatment and,hence, additional embryos are available for subsequent cycles. Some embryos may remain, and the method of disposal or alternate use should be addressed.
1. Costs
Costs are associated with continued preservation of the embryos, the infertility clinic or other holder/preserver of the embryos has an obvious expectation in being compensated for the length of time which the embryos are cryopreserved.
2. Availability for Use by the Donating Couple
The cryopreserved embryos may be available for use by the donating couple (or by the genetic father and the recipient mother in a donated context) in subsequent cycles. Divorce or death of either or both of the "intended" parents should be addressed in the agreement.
3. Informed Consent/Disclosure Issues
The likelihood of a successful pregnancy, and the procedures to be utilized should be disclosed in the agreement.
4. Period of Cryopreservation
The infertility clinic/cryopreservation storer may hold the embryos for a fixed period of time, after which arrangements should be made for disposal or for an extended period of storage. Address changes should be conveyed to the cryopreservation storer.
5. Methods of Disposal
There are three principal methods of disposal of embryos which are not implanted into the host carrier. These are:
a) Embryo Donation
Embryos may be donated to others who desire to parent children. Generally separate consent is preferred for donation, as the involved parties may wish to screen each other.
b) Cell Culture and Degeneration
Thawed embryos usually degenerate in less than a week and continued growth is presently impossible without placement into a uterus.
c) Scientific Study
Client preferences and ethical concerns should be explored in depth for this possibility.
X. CONCLUSION Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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