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PROTOTYPE EGG DONATION
CONTRACT
WITH COMMENTARY
By: Mark A. Johnson
"More children are created through IVF, artificial insemination and
surrogate motherhood than are adopted each year . . ." Lori Andrews,
Attorney and Medical Ethicist from Chicago-Kent College of Law, on
CBS's Face the Nation with Bob Schieffer, Sunday, November 23, 1997.
Assisted reproductive technology has traditionally been the exclusive bailiwick of doctors. An infertile couple, conferring with a team of medical practitioners, focused on the delivery of medical services in an attempt to address their childlessness.
However, with the advent of third party assisted reproductive technology (A.R.T.), the issues have expanded exponentially in encompassing medical, legal, ethical, moral, emotional, psychological, and religious tenets. The introduction of donated sperm, eggs, and embryos, along with the prospect that a woman, not the intended mother, would actually bear the child and surrender it upon birth to its intended mother, catapulted this issue out of the doctorís office and into societyís consciousness. Horror stories such as that evinced in the Mary Beth Whitehead episode have colored societyís understanding of a family building option which, when properly implemented, succeeds well over 90% of the time.
Many of these options involve advances in medical technology, such as egg donation, in vitro (test tube) fertilization, and embryo transfer into the uterus of a woman who may or may not be ultimately its intended mother. Cryopreservation (freezing) enables the preservation of sperm, embryos, and with the recent breakthrough of embryologist Dr. Michael Tucker, eggs.
Other third party assisted reproductive options which are decidedly more "low tech," such as traditional or artificial insemination surrogacy, simply reflect a change in perspective, although with obvious psychological and legal ramifications. Other third party assisted reproductive options which are decidedly more "low tech," such as traditional or artificial insemination surrogacy, simply reflect a change in perspective, although with obvious psychological and legal ramifications.
Often these third party A.R.T. and surrogacy arrangements involve interstate and international elements, such as a genetic provider residing in one location and a surrogate residing at great distance. Potential conflicts of laws and cultural differences must be ameliorated.
Due to the nascent nature of third party A.R.T. and egg donation, it cannot be over emphasized that there are novel aspects that cut across disciplinary lines. Of paramount importance is the fact that legal aspects must be considered an absolute "floor" to those entertaining third party A.R.T. and egg donation options. Merely because a couple might be able to fit their particular third party A.R.T. or egg donation venture within the framework of a particular set of laws in whatever state, does not justify ignoring the other essential disciplines involved in third party A.R.T. or egg donation options.
The conundrum facing any practitioner in this field is "what could be more complicated than a pregnancy in another womanís uterus?"
A number of disciplines, which deal with the whole realm of human experience, must be consulted. It is absolutely essential that an interdisciplinary team be assembled with competent professionals in the following areas:
Infertility Physicians. These are the people who make third party A.R.T. happen. These practitioners must assess the gametes (sperm and egg) of the infertile couple, or the eggs of the egg donor, to assure that they are satisfactory in order to create a healthy and viable offspring. They must also evaluate the "delivery systems" in order to assure that the sperm has sufficient motility to fertilize the egg (and if not, to employ ICSI or other procedures) and that wife, as the host uterus, is physiologically appropriate to carry the embryo to term and result in the birth of a healthy child.
Obstetricians/Gynecologists. At a certain point, the "baton" is passed from the infertility physician to the obstetrician/gynecologist who then manages the pregnancy in much the same manner and fashion that they would a "low-tech" pregnancy.
Psychologists/Psychiatrists/Counselors. Many infertile couples do not focus sufficiently on the role of the psychologist/psychiatrist/mental health counselor. Most infertility clinics insist on their involvement, as infertility difficulties yield problems above and beyond the physiological. The infertile couple must be comfortable with the fact that the child will genetically only be one-half their own. The egg donor must be satisfied with her decision to part with some of her finite supply of eggs. Of particular import is the scenario where the egg donor is related to the infertile couple. Fairly often the involved parties assume "its family" and fail to objectively evaluate the situation to the extent that they should. Lawyers witness their share of family discord through divorce, child custody disputes, and will contests, and unfortunately third party A.R.T. is not immune from intra family strife.
Lawyers. While medical advances render egg donation and embryo transfer possible, the laws in most states have not kept pace with the technological advances. Even in states where matters such as egg donation have been addressed through the Legislature or through the courts, a contract is still an essential document, if for no other reason than to assure a true "meeting of the minds." And while egg donation is theoretically akin to sperm donation, the methods of harvesting the gametes are so diametrically opposed that the methodology should be confirmed in the Egg Donation Agreement.
Finally, it cannot be overemphasized that the Consent for Egg Donation form which follows is but a starting point. Every situation is different, and agreements of this import and significance should be individually crafted. Practicing attorneys should utilize the attached form as an initial template in order to craft an agreement unique to the particular circumstances. Therefore, while substantial effort has gone into the preparation of the form, no form should ever be copied verbatim, as proper adaptation should be based upon the particular facts and circumstances. An undertaking of the significance of an egg donation arrangement demands the involvement of competent legal help.
Introductory Paragraph
The parties to the agreement must be identified, and they include the Wife/Recipient, the Husband/Father (collectively the infertile couple), the Infertility Clinic and its physicians, the Egg Donor and her husband, if she is married. The Wife/Recipient shall have the embryos, produced from the union of the donated eggs and her husbandís sperm, placed trans-vaginally into her uterus, and hence she is obviously intimately involved in the arrangement and should be a party to this agreement. Her husband shall obviously provide the sperm which shall be utilized to fertilize the egg, and the Egg Donor is the individual "giving up" her eggs through an intricate medical procedure, so she obviously has a stake in the transaction. The Infertility Clinic shall be performing the egg retrieval procedure, shall be fertilizing the donated eggs with the provided semen in vitro (test tube), and shall be transferring one or more embryos into Wife/Recipient's uterus. While the form, which accompanies does not address the issue of number of embryos to be transferred, the parties must realize that each embryo transferred is a potential human being, and hence the possibility of a multiple pregnancy ensues. Multiple pregnancies carry with them the risk of damage or injury to the Wife/Recipient, the potential children themselves, as well as the possibility of premature birth. The Infertility Clinic shall also generally be the entity which stores unused embryos or eggs, and hence the issue of cryopreservation (form of frozen storage) must be addressed, along with the possible disposition of unused embryos or eggs.
The Donor's Husband, if Donor is married, is also a desirable party to the agreement, if for no other reason than his wife, as the Egg Donor, shall be undergoing medical procedures which carry some risk and it is best that his consent and permission be obtained. There is also the indelicate topic of the possibility of sexually transmitted disease (including HIV/AIDS), and hence it may be necessary for Donor and Donor's Husband to undergo tests to assure that such risks are minimized.
Legal Presumptions and Novelty of the Arrangement
Paragraph 1
Prior to two decades ago, there had never been a question in the realm of human experience as to who the "mother" of a child was. Biology dictated that the pregnant woman provided both the genetic component (eggs) and that the same genetic mother would nurture the embryo/fetus through pregnancy and ultimately give birth to her own genetic child. However, with the advent of egg retrieval and in vitro fertilization, an option presented itself where the embryos could be returned not only to the genetic mother, but they could also be placed into a "host uterus" other than the genetic mother. The eggs and embryos could also be frozen.
Human experience had confronted the issue that the father of a child was not necessarily the husband of the childís mother, yet the laws of most states and countries still presume that a childís genetic parents are the childís mother and her husband, absent some steps taken to overcome this customary presumption. While the laws in most states authorize paternity actions, very few specifically authorize maternity actions and the law traditionally did not anticipate many of the options and the decisions now available to infertile couples. As a consequence, the customary presumptions need to be rebutted or, in lay terms, overcome.
In many states and countries, it is possible to overcome usual statutory presumptions by private agreement among the parties, i.e., the law of private contractual obligation and responsibility. Hence, the attached agreement takes the tack that the parties will privately agree that the usual statutory and legal presumptions are not applicable in this arrangement.
Subparagraph (a) emphasizes that the legal "mother" of any potential human child, shall be the Wife/Recipient, rather than the Donor, who is genetically the parent.
Subparagraph (b) specifies that Donor's Husband shall under no circumstance be considered the "father" of the potential human child. Rather, the father shall be the Wife/Recipient's husband.
Subparagraph (c) establishes that the Donor has no ownership or privacy rights or expectations in and to her egg once they are removed pursuant to this agreement. In her ovaries Donor would exercise complete dominion and ownership over her eggs. However, once Donor's eggs are removed by the physicians of the Infertility Clinic, Donor shall no longer have any rights whatsoever in and to her eggs or any potential or human child or children which may ensue pursuant to the procedures contemplated under the agreement.
Subparagraph (d) emphasizes the Donor and/or Donor's Husband have no legal right to the eggs once they are harvested from Donor. Furthermore, they have no responsibility for child support for any children which may result under the auspices of this agreement. Rather, the sole parental rights and support obligations to the child or children shall be in Husband/Father and Wife/Recipient. Neither Donor nor Donor's Husband will in any way attempt to form a parental relationship with the child or children born as a result of the contemplated procedure. Certain egg donors and egg recipients treat their relationship as "open," which denotes that the Egg Donor will continue to have some form of ongoing recognition or relationship with the child or children to be born. However, this friendly relationship shall never ever assume the status of a child/parent relationship.
Subparagraph (e). Husband/Father and Wife/Recipient shall be the sole individuals who can name the child or children upon its or their birth, and will correspondingly be the father and mother, respectively, listed upon the childs birth certificate.
It might be necessary under the laws in a particular state or country that agreements or affidavits might have to be signed, that certain surrenders or relinquishments of possible or actual parental rights might have to be signed and submitted, or that certain legal proceedings (including possibly adoption) might be necessary in order to effectuate exclusive parenthood of the child or children in Husband/Father and Wife/Recipient. The parties agree to fully cooperate on any such required undertaking, and the agreement specifies that the reasonable expenses, including attorneyís fees, necessary to carry out the terms of this agreement will be borne by Husband/Father and Wife/Recipient.
Paragraph 2
This portion of the agreement deals generally with the initial evaluation costs, who would be responsible for those costs, the initial diagnostic tests to be performed (including infectious disease testing), as well as disposition of unused eggs and embryos.
Subparagraph (a) includes an affirmative representation by Donor's Husband that his wifeís (Donor's) eggs to be donated are unfertilized by him and that he (Donor's Husband) is not to be considered the father of any potential child for any purpose whatsoever.
Paragraph 2(b) contains an affirmative commitment on the part of Donor's Husband that he shall not claim any parental rights in the potential child and will not attempt to form a parent/child relationship. In furtherance of this commitment, they agree to sign additional formal relinquishment of their potential parental rights in the future if these actions become necessary.
Paragraph 2(c) Wife/Recipient and Husband/Father agree to bear the psychological evaluation and medical costs of egg removal from Donor to the extent that these costs are not covered by available medical insurance. Additionally, Wife/Recipient and Husband/Father agree to be primarily, rather than secondarily, liable for these expenses not covered by medical insurance.
This paragraph clarifies, as opposed to typical insurance reimbursement arrangements, that people (Wife/Recipient and Husband/Father) other than the individual actually receiving the medical services (Donor) shall bear the medical expenses not covered by insurance. Insurance policies covering both Wife/Recipient and Donor should be scrutinized to discern these policiesí coverages of infertility treatments. As many policies contain limitations and/or exclusions for infertility treatments and particularly third party assisted reproductive technology, such as evidenced in egg donation arrangements.
Insurance policies should be checked to assure that both the Wife/Recipient and Donor are covered generally for all possible health complications which might arise from the course of medical treatment which they shall be undertaking.
Subparagraph 2(d) addresses the nettlesome issue of the possibility of infectious disease transmission. While this prospect might be insulting to some of the participants, it is nonetheless a physiological possibility and good practice requires that it be addressed.
While the state of medical knowledge is beyond the scope of this position paper, it is presumably possible that transferred genetic material (such as sperm, egg, or embryo) could be infected with HIV/AIDS. With donated sperm, the medical community generally "quarantines" (through cryopreservation) the sperm for a period of time (generally six months) and then the sperm donor is retested for HIV/AIDS to address a latency period in detection of this disease. Apparently the PCR method of evaluation (a form of DNA analysis) sufficiently addresses the latency period of detection, yet it is not the principal test utilized for this disease detection.
It is theoretically possible for donated eggs to carry the same infection, although eggs have not, up to this point, generally been frozen to address the latency period of detection.
Hence this subparagraph 2(d) of the agreement stresses that Wife/Recipient and Husband/Father agree to bear the risks of this procedure nonetheless, as they have been made privy to the results of infectious disease testing performed on Donor and possibly on Donor's Husband if the attending physician so recommends. Both Husband/Father and Wife/Recipient waive claims or potential claims they may have against Donor for disease transmission. Wife/Recipient and Husband/Father also agree to take full and complete responsibility for any child or children born as a result of the procedures contemplated under the agreement, regardless of whether the child is healthy, ill, handicapped, retarded, or otherwise adversely affected.
These issues are obviously not to be taken lightly.
Subparagraph 2(e) concerns the issue of frozen preservation of eggs or embryos known as cryopreservation. While the recent advances of embryologist Dr. Michael Tucker now permit the freezing and later utilization of eggs, most often eggs are cryopreserved not as individual gametes, but as fertilized embryos. There are generally extra eggs (or later embryos) available for cryopreservation, as one of the aspects of reproductive medicine is to build a certain redundancy into the procedures. In a customary reproductive cycle there is generally one embryo in the genetic motherís uterus. With A.R.T. there are often multiple embryos placed in the intended motherís uterus to increase the likelihood that she will be able to carry a child (and possibly more than one) to term successfully.
In order to effectuate this redundancy, it is necessary for the Egg Donor to donate more than one egg at a time. To accomplish this end, the Egg Donor is treated with a series of gonadotropin injections. These are hormone treatments designed to stimulate the gonads, so that multiple eggs are available for "harvesting" by the Infertility Physicians. The Infertility Physicians surgically suction Donor's eggs through an inserted needle and remove the eggs, which are generally then fertilized with the donated sperm in vitro (test tube). There are often more embryos available than needed for immediate embryo transfer into the intended mother in egg donation situations. Hence, the extra embryos can be cryopreserved for later use. Later use could include additional cycles in the event that the intended mother does not become pregnant with the initial embryo transfers, or they could be saved for later use for possible additional children in the event that the intended mother immediately becomes pregnant with the embryo transfer.
Even so, there may be embryos still "left over."
Subparagraph 2(e) emphasizes that Donor and Donor's Husband acknowledge that some of the eggs will be fertilized and stored through cryopreservation and that they specifically acknowledge that they have no claims in the future to the preserved embryos. They will not make any claim for the preserved embryos, even in the event that Donor and Donorís Husband are rendered infertile in the future.
Subparagraph 2(f) delineates the uses that may be made of the cryopreserved embryos, and the parties acknowledge that they might even be utilized for embryo transfer into a surrogate mother in the event that Wife/Recipient cannot herself carry a child to term through use of the donated embryos.
There can be a situation where Infertility Clinic cryopreserved embryos and either or both of Wife/Recipient and Husband/Father pass away. If Wife/Recipient and Husband/Father have failed to address what they wish to do with the embryos in their Last Will and Testament, or have failed to dispose of the eggs through a contract or agreement with the Infertility Clinic, then Wife/Recipient and Husband/Father allow the destruction of the frozen embryos, but do not allow the use of the frozen embryos for medical, scientific or experimentation purposes. In the authorís experience, this is the approach most parties prefer. It could also be possible to donate the embryos to other infertile couples, although, in the authorís experience, donating couples in this situation generally prefer to personally screen possible recipients.
A highly controversial option is to allow the embryos to be utilized for medical experimentation or tissue donation purposes.
Paragraph 3 - Purpose of Treatment
This provision sets forth the desired results of the Egg Donation Agreement, as well as the medical methodologies which will likely be utilized.
Wife/Recipient shall utilize the eggs donated by Donor so that Wife/Recipient can experience pregnancy, childbirth and motherhood.
Donor waives any right that she has to her extracted eggs or to the possible children to result from them. Donor also waives any decision making concerning the resulting pregnancy, including issues of pregnancy termination, selective reduction, and/or disposition of any of the donated eggs, fertilized embryos, or potential human children.
The decision to carry the child to term or terminate the pregnancy shall solely rest in Wife/Recipient. In the event that there is a multiple pregnancy due to multiple transfer of embryos during a single reproductive cycle of Wife/Recipient, then the decision to either carry all of the children to term or to "selectively reduce" one or more fetus(es) shall rest solely with Wife/Recipient. While the number of embryos transferred during any particular reproductive cycle is not addressed in this agreement, Wife/Recipient should be aware of the possibility that the transfer of multiple embryos could result in a multiple pregnancy. Particularly considering the desire of Wife/Recipient to give birth to children, this would be an incredibly difficult decision for Wife/Recipient to make. The author suggests that Wife/Recipient consider this possibility prior to embryo transfer and take appropriate measures to reduce the likelihood where Wife/Recipient might have to make a selective reduction decision.
The first paragraph addresses compensation and remuneration questions, and asserts that the Donor is entitled to no such compensation or remuneration, and none is expected nor promised. This form anticipates an uncompensated (compassionate) donation of eggs, so as to circumvent notions in the laws of certain states concerning "baby selling," which generally arise in the adoption context.
Husband/Father and Wife/Recipient agree to bear the expenses of medical procedures in the event that policies of insurance do not fully cover the procedure. This would be the full extent of Husband/Father's and Wife/Recipient's financial obligations under the Egg Donation Agreement.
In the event that the Donor is to be compensated, then this paragraph needs to be revised. Compensation for egg donation has not been fully addressed in most states, yet it could certainly be argued if males can be compensated for donating their sperm (with the act of donation being a relatively simple and painless procedure), then fundamental fairness would demand that women be afforded the same compensation rights for egg donation (particularly considering their more finite supply of eggs and the decidedly unpleasant and invasive surgical procedure and pharmaceutical protocol which typifies egg donation). One can argue that the United States Equal Protection Clause would be violated if men could be compensated for their sperm donation, but women denied the same and equal treatment. In this regard, see the case of Soos v. Superior Court County of Maricopa, 897 P.2d 135 2d (Ariz. App. Id.1 1994), where Arizonaís anti-surrogacy statute was declared unconstitutional for violating both the Arizona and United States Equal Protection Clauses. In this case, women were denied the opportunity to prove their genetic link to a child in the gestational surrogacy context, while that right was afforded men.
A description of medical procedures then comprises the bulk of pages 4, 5 and 6. If different procedures are to be utilized in a particular egg donation, then the language should be similarly revised.
The reason for the inclusion of this information is two-fold.
First is to assure that there is a true "meeting of the minds" as to the likely procedures to be undertaken in egg donation. Egg donation is not a simple procedure, free of discomfort and free of risk. The participants must be aware and must make reasoned decisions based on the best available information.
The second is a corollary of the first. The ability to make a reasoned decision, premised upon the best available information, dovetails with the notion of "informed consent." This is a doctrine which developed in the arena of medical malpractice law, and requires that a treating physician provide information on elective medical procedures, along with the likelihood of success and the potential detrimental effects. Once the patient is armed with this information, the notion is that the patient could make an intelligent and reasoned decision based on the disclosed probabilities.
While informed consent has traditionally been applied between patient and treating physician, in the egg donation context the Wife/Recipient is encouraging Donor to undertake elective medical procedures, which result in egg donation, which are not entirely free of risk and discomfort. As a consequence, the author finds it safest to provide the requisite information upon which Donor can make a reasoned decision.
Paragraph 4 Risks to Wife/Recipient and Husband/Father, along with risks to potential children
Paragraph 4 primarily addresses the risks to Wife/Recipient from her expected pregnancy as a result of the egg donation, fertilization, and embryo transfer. Paragraph 4 also addresses possible genetically-inherited conditions and disease and the predictability of certain inherited detrimental conditions.
The embryos will be the union of the genetic attributes of both Husband/Father and Donor. Both must rule out the likelihood that their genetic composition contains certain inherited conditions, some of which are found in certain races or nationalities (such as Tay-Sachs disease or sickle-cell anemia). Others, such as neurofibromatosis, Downs Syndrome, and polycystic kidney disease, are not restricted to certain races or nationalities, but may nonetheless run in certain family trees.
Along the same lines, it will prove to be invaluable to have a complete genetic history of Donor. Many years hence, the children born as a result of this egg donation will be able to provide Donor's genetic history to their treating physicians. Exhibit "A" is a comprehensive listing of the genetic history of Donor and her relatives. The notion is that too much, rather than too little, information should be provided to the childrenís physicians many years hence.
Subparagraph 4(a) emphasizes that the risk of pregnancy is to be born solely by Wife/Recipient and Husband/Father, not by Donor nor Donor's Husband. The provision also reemphasizes (at subsection XV), the risk of HIV/AIDS transmission through the use of non-frozen eggs. As with much in the evolving medical practice of A.R.T., these disease transmission issues may change over time.
Paragraph 5
Paragraph 5 of page 11emphasizes again that the costs of these procedures will be borne by Wife/Recipient and Husband/Father.
Paragraph 6
Paragraph 6 of page 11 emphasizes that the Infertility Clinic and its doctors will not be compensating anyone in this transaction, nor bearing any expenses themselves. In certain instances, an infertility clinic, cryobank, or other practice or entity might commission or arrange for egg donors under its own auspices. If that is the situation, the contract should certainly be revised to reflect it.
Paragraph 7, concerning confidentiality
The extent of disclosure, particularly as it relates to the child during the childís development, should be delineated. However, confidentiality should be maintained and Donor and Wife/Recipient should not have specific medical details revealed about them by the doctor without her consent. Typical medical tests can track Donor's and Wife/Recipient's experiences, but cannot reveal their identities.
Paragraph 8, concerning child placement agencies
This paragraph emphasizes that there is no child placement agency, adoption agency, or similar organization involved in this arrangement. The purpose of this provision is two-fold:
(a) Often agencies or brokerages expect compensation for their services. Since the parties are affirming that no such services have been provided, then no one involved in this transaction will be surprised by a demand for payment from a child placement agency or its equivalent.
(b) Child placement agencies are frequently involved with adoption and other highly regulated fields of endeavor. Their involvement often triggers scrutiny by regulators, who are charged with preventing "baby selling." As a consequence, it is desirable to assure that no such entity is involved which would trigger this heightened scrutiny.
Paragraph 9, concerning legal representation
In order to assure that there has been no overreaching or pressure brought to bear on Donor in order to secure her agreement to donate her eggs, a traditional safeguard has been to assure that each side to a contract has had the opportunity for independent legal consultation and review. This paragraph emphasizes that the Donor and Donor's Husband have had the opportunity to have the document reviewed by an attorney of their choosing. To the extent that they have not availed themselves of that opportunity, they have waived any claim -- before and after the fact -- of duress, mistake, or some other legal defense.
The second paragraph emphasizes that the firm, which drafts the contract, represents the Husband/Father and Wife/Recipient, rather than Donor or Donor's Husband. Oftentimes, lay people are confused as to who a lawyer in a transaction represents. For example, the closing attorney in real estate transactions typically represents the financial institution, not the purchasers. It makes abundant good sense to alleviate any possible misapprehension.
Paragraph 10
This paragraph reemphasizes that the children to be born will be considered the legitimate children of Husband/Father and Wife/Recipient, and entitled to inherit from them as if the child was theirs in the traditional sense. Husband/Father and Wife/Recipient acknowledge that the child or children born as a result of this agreement shall be fully theirs under every circumstance, and in no way may they disclaim the child or children as their own.
The second paragraph acknowledges that the parties understand the agreement, even though a good portion of it is written in technical language. They emphasize that they have been given an opportunity to ask any questions; and that the questions and inquiries have been answered to their satisfaction. Donor is specifically informed that she may contact Infertility Clinic and its doctors concerning the course of treatment. The provision also emphasizes that Donor is 18 years of age or older, which is the age of majority and adulthood in most states.
Paragraph 11
These paragraphs concern what is known as a choice of laws provision. Often there are transactions which have elements which touch upon more than one state. For instance, the infertile couple may reside in one state and the egg donor in another state, while the infertility clinic could be in a third state. The issue then is which law governs?
These issues can be litigated for lengthy periods. In the event that there is a "nexus" or connection in a particular transaction with a particular state, then the parties to the transaction can clarify, and agree to be bound by, the laws of a particular designated state.
The laws of different states frequently conflict, and third party A.R.T. is not immune from these disparities.
It is essential that the parties consult an attorney who can advise as to whether the laws of a particular state should be so designated, or which state of several possibilities should be selected as the governing law of the transaction.
The balance of this provision emphasizes that egg donation agreements and transactions are still novel procedures under the laws of many states. Even where the states have addressed certain issues of egg donation, they generally have not resolved all of the possible issues arising under egg donation arrangements.
Just as the parties need to be aware of the medical risks under informed consent notions, they similarly must be aware that there is legal risk in these transactions. Yet the parties nonetheless wish to go forward and expressly assume the legal risk.
Paragraph 12, concerning artificial insemination presumptions under Georgia law
This agreement is based on the state where the author practices, that being Georgia. Georgia was the first state in the country to pass an artificial insemination statute (found in Georgia at O.C.G.A. ß 19-7-21), the substance of which has been adopted in many other states.
The purpose of the code provision was to assist infertile couples where the husbandís sperm was inadequate for conception and hence sperm was donated to impregnate his wife through artificial insemination. In that context, if Donor and Donor's Husband consented to artificial insemination (and in vitro fertilization could possibly be considered such a procedure), then the child born as a result of the artificial insemination procedure would be conclusively deemed to be the legitimate child of the consenting couple.
While it is a bit of a stretch to apply that code to in vitro fertilization, the results are significant enough so that it should be clarified that the statute is not meant to apply in any context to the egg donation arrangement. Otherwise, if the child were conclusively deemed to be Donor and/or Donor's Husband's legitimate child, then it could be argued that under no circumstance could that legal determination be changed. Again, this is a factor under Georgia law, but may have applicability in a number of other states.
Paragraph 13
Paragraph 12, addresses the "best interests of the child" standard. As third party A.R.T. and egg donation are emerging fields, the law has not fully contemplated every nuance or possibility which may arise. In this vacuum, courts have often struggled to determine a controlling standard. They often rely on pre-existing paternity, maternity, and adoption law. A recurring theme in this pre-existing area of the law is that courts must examine what is in the best interests of the child.
If for some reason it became necessary for a court to rule on some facet of the egg donation arrangement, then it would be helpful for the trial attorneys to have a concession from all parties to this agreement that the actions governed by the egg donation agreement are in the best interests of the child. In the event that a signatory of the agreement chose to attempt to repudiate the agreement and claim a paternal or other interest to the child born as a result of the agreement, then it would be very helpful to opposing trial counsel to be able to brandish this particular concession of the repudiating party upon trial or hearing of the case.
Paragraph 14, concerning standard or "boilerplate" provisions
In any written contract, there are certain customary provisions that are helpful in terms of upholding the agreement and enforcing its terms. They include:
Subparagraph 14(a) holds that the agreement is binding upon successors in interest to the signing parties. For instance, if Husband/Father died during the term of the pregnancy of his wife (Wife/Recipient), then his estate would still be liable for support of the child or children to be born. The provision also contains a "merger" provision so that it is apparent that the document itself and no other oral understandings to the contrary, shall be controlling. If it is necessary to revise the agreement, it can only be done in writing signed by all parties to the agreement.
The inclusion of these provisions can eliminate a lot of "wiggle room" for anyone who would attempt to take a position, which is contrary to the terms expressed in this agreement.
Subparagraph 14(b) contains what is known as a severability provision. In the event a portion of the agreement was deemed unenforceable, the remainder of the contract would still continue to be in effect. Simply because one aspect of the contract might not be enforceable would not be a sufficient reason to toss the entire agreement out.
Subparagraph 14(c) enables the parties to claim equitable remedies as opposed to strictly legal remedies. Legal remedies are generally restricted to receiving monetary damage awards. Equitable remedies include the ability of a court to force an individual to take a particular action or refrain from a particular action which would be at odds with the promises and commitments contained in the agreement.
Subparagraph 14(d) emphasizes that there will be multiple originals of the agreement, each of which will be originally signed by all of the parties. Hence there will not be a situation where there is only one original document, so that any fully executed copy of the contract can support any required legal proceedings.
Signature/Execution Lines
The parties to the contract must sign it in order to be bound by it. Good practice would also dictate that the particular signatures be dated and witnessed. Often, execution of a document by multiple signators occurs on different dates, and the actual date of execution should be memorialized in the event that it becomes necessary to prove certain aspects concerning the signing and execution of the agreement.
A third party, disinterested witness is often desirable in the event that certain matters concerning the signing and execution of the agreement end up disputed by the parties. This form calls for unofficial witnesses, but it may be desirable (yet a bit more inconveniencing) to have the signatures notarized. These "official" witnesses are generally licensed by the state and hence afford more credibility and more formality to the signing and execution of agreements and contracts.
Exhibit A Background Information on Egg Donor
As is often required in adoptions, background genetic information can prove to be invaluable. For instance, in typical adoptions, it is helpful to physicians in treating the adoptive child to have access to the best genetic history available on the child.
By parity of reasoning, the same factors would hold true in egg donation arrangements. Certainly this is true for a Donor unrelated to Wife/Recipient, but is less essential in the event a sister donates the egg to Wife/Recipient.
The attached Exhibit "A" demands information which is fairly voluminous and may not be fully known by the Donor. Yet, the more complete the information, then the more it will be of benefit to physicians in providing medical care to the children born as a result of egg donation arrangements.
It is hoped that the Consent for Egg Donation Agreement, along with this commentary, will be of benefit to those individuals considering egg donation arrangements. Again, the author cautions users of these documents that this is a general form, which should be tailored to the particular factual circumstances as well as to the law of a particular state or states where the egg donation arrangement will be created and implemented.
A factually adjusted and well-crafted agreement lessens and ameliorates the prospect that there will be misunderstandings, disputes, and possible litigation in the future. Parties to agreements should labor to resolve any ambiguities in advance of entering into egg donation and other third party assisted reproduction arrangements. It is ill advised to "punt" issues to government officials, judges and juries. Dilemmas like that confronting King Solomon should be scrupulously avoided.
The best of luck to those of you who are considering egg donations or other third party reproductive alternatives.
Mark A. Johnson maintains an active surrogacy and reproductive law practice in the metro-Atlanta, Georgia area. He represented the parents in the first gestational surrogacy in the state of Georgia, as well as the parents in the first artificial insemination surrogacy in the state. He continues to represent a majority of the surrogacy arrangements in the state of Georgia, including drafting and analysis of egg donation, embryo donation, surrogacy, and cryopreservation contracts, as well as representation in required court proceedings in the metropolitan Atlanta area and throughout the state. Cases have addressed multi-state issues such as location of surrogates, infertile couples, and infertility clinics in sister states.
He has authored papers published by The American Surrogacy Center, Inc. (TASC) at www.surrogacy.com, including "Observations of Laws of Surrogacy in the U.S." (April 1996), "The Legal Status of Surrogacy in Georgia" (April 1996), and "Recent Court Decisions Concerning the Law of Surrogacy" (August 1996). He is a cofounder and principal of TASC. He speaks frequently on third party reproductive legal issues.
The holder of law degrees from both Emory University (LLM in taxation, 1987) and the University of Georgia (J.D., 1979), Mr. Johnson is also a Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill (B.A. in Journalism, 1976). He was conferred a Masterís of Business Administration from the University of Georgia in 1980.
Honors: Phi Beta Kappa; Kappa Tau Alpha; Sigma Iota Epsilon; Atlantic Coast Conference Honor Roll 1974, 1975
Professional/Community Activities:
Mark A. Johnson, P.C.
Dupree, Johnson, Poole & King
49 Green Street
P.O. Box 525
Marietta, GA 30060
email: mjohnson@surrogacylaw.com
May 2000
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Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.