Contractual Concept for Assisted Conception: The Ova Donation Agreement and Other Considerations

by ELIZABETH COUGHTER

With advances in medical technology, babies today are not always conceived the old-fashioned way, i.e. sexual intercourse. Babies may now be conceived with the assistance of various medical procedures. Some of those techniques include in vitro fertilization ("IVF"); artificial insemination ("AI"); and the use of surrogates. With the growth industry of assisted conception, can the need for a lawyer be far behind? Recently, I have been requested by a married couple to provide them with a written agreement between them and a woman who is willing to donate her ova to assist in the conception of a child by my clients.

IVF is a method of fertilizing a donor woman's egg with sperm outside of the woman's body. The egg is fertilized in a laboratory after having been removed from the donor woman. The resulting embryo is transferred to the uterus of the intended parent. AI is a method of using a syringe or other medical implement to inject sperm into a woman's uterus in an effort to fertilize the egg of the woman. IVF is generally utilized by women who have had difficulty conceiving on their own. AI is generally used by women whose partner's sperm are ineffective.

Assumptions that these artificial fertilization methods are always used by married couples are not true. Single women and lesbian couples often utilize AI in order to produce a child. The use of surrogates to conceive a child is probably the assisted conception method of last resort. Generally, a volunteer woman agrees to carry to term an embryo created by in vitro fertilization and, thereafter, relinquishes her parental rights to the couple who provided the embryo.

Virginia is surprisingly one of only a few states that has comprehensively addressed these issues. Virginia statutes include the Status of Children of Assisted Conception Act found at Virginia Code §20-156 et. seq. Virginia law also provides for the testing requirements of gamete donors at Virginia Code §32.1-45.3. Birth certificate requirements are addressed in Virginia Code §32.1-257. Finally, the success rate of fertility clinics is required to be disclosed pursuant to Virginia Code §54.1-297.1. This article will focus on the first statute, the Status of Children of Assisted Conception Act (the "Act").

A brief review of the other statutes includes the requirement that donors of sperm or ova, (gametes) must submit to HIV testing prior to donating their sperm or ova. Virginia Code §32.1-45.3. Parentage is addressed in Virginia Code §32.1-257: any child that is born as a result of donated sperm or ova is not the child of such donor and the donor shall not have any parental rights or duties for any such child with the obvious exception of the parent to whom the child is born, when that parent is a donor. Finally, Virginia Code §54.1-297.1 requires that any physician who treats a patient by IVF or other artificial assisted conception technique shall disclose to the patient in writing the rates of success at the physician's clinic or hospital where the procedure is performed.

The Act primarily focuses on the requirements of a valid surrogacy contract, i.e., a contract between a woman and a couple who wish for the woman to carry an embryo to term on the couple's behalf. Although the Act is broad in its definition of assisted conception and definition of donor and other medical terms, it does not provide much guidance for the drafting of an egg donation agreement. The Act does provide, however, very strict guidelines for surrogacy contracts.

By its broad terms, the definition of the parentage of a child of assisted conception provides that the gestational mother of the child is the child's mother, and the husband of the gestational mother is the child's father. The husband, however, has the opportunity to rebut the presumption of fatherhood if "he commences an action in which the mother and child are parties within two years after he discovers or, in the exercise of due diligence, reasonably should have discovered the child's birth and in which it is determined that he did not consent to the performance of assisted conception". Virginia Code §20-158(A)(2). The Act also provides that a donor will not be considered the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother. Virginia Code §20-158(A)(3).

The language of this Act apparently requires that a husband provide his consent to the performance of assisted conception. If there is no consent, than the father can contest paternity as stated above or in the process of a divorce or annulment. Virginia Code §20-158(C).

What is not specifically addressed in the Code of Virginia are the parameters for a contract between an egg donor and a couple seeking assisted conception. How does egg donation work? The process begins with the selection of a donor. Sources of donors include family members or close friends; donors from an infertility clinic; or donors who advertise on the internet or in other marketing forums. The medical process requires both the egg donor and the intended mother to undergo hormonal treatments. The treatments are necessary in order for the donor to produce the eggs and for the intended mother to be most receptive for the fertilized embryo. The egg is removed from the donor and fertilized in a petri dish with sperm that is generally from the husband of the intended mother. This fertilized egg is then placed in the uterus of the intended mother and hopefully results in the delivery of a healthy infant nine months thereafter.

What are the considerations that should be given to drafting a contract between an egg donor and intended parent? The intended parents' concerns include at least the following:

1. the health of the donor;
2. the completion of the hormonal treatments and retrieval procedure by the donor;
3. the parentage of the resulting child(ren);
4. the ownership of any unused frozen embryo;
5. the release of liability by the donor; and
6. the confidentiality of the process or not.

The concerns of the donor are likely to be as follows:

1. the payment of expenses for the retrieval procedure;
2. the parentage of the resulting child(ren);
3. insurance coverage;
4. medical complications; and
5. confidentiality.

Obviously, some of the concerns of the parties are similar. Certain concerns that are common to all parties include that time is of the essence. Time is of the essence because generally a donor is found right before the hormonal treatments and the retrieval procedure are to commence. The intended parents are obviously anxious to commence the process as soon as possible. The donor's and intended mother's biological clocks dictate, to some extent, as to when the retrieval procedure may take place. Therefore, regardless who one represents, there will be pressure brought to bear to get the contract signed by all parties as soon as possible.

Another primary concern that attorneys may focus on more than the parties, is the prevention of the coupling of the child born to the intended parents and any children of the donor. Since the parties may wish to either remain anonymous or preserve confidentiality and are anxious to commence with the process of producing a baby, any concern about the coupling of future offspring may be ignored. An attorney, however, who is paid to consider the worst case scenario, should raise the issue. Some couples may wish to avoid any and all future contact with the donor without appreciating that the future may require them to find the donor to learn more about the donor's medical history if their resulting offspring has some sort of genetic health problem. The other, perhaps less likely, disaster would be if the resulting offspring has an intimate relationship with a child of the donor. How can such a nightmare be avoided? The only way to avoid such a nightmare is to provide for future correspondence between the parties. Therefore, the agreement may or may not contain a provision that requires the donor to advise the intended parents of any children she may have and requires the parties to maintain knowledge of their current addresses.

Contractual provisions identified above that the intended parents may require include that the donor passes certain physical and perhaps psychological evaluations. The donor may wish the same of the parents. The intended parents definitely want certainty that the donor completes the necessary hormonal treatments and retrieval procedure. Therefore, the agreement should provide for the number of times that the donor is obligated to complete the retrieval procedure process; the dates within which the retrieval process will take place; or the dates that donor is exempted from participating, such as holiday or vacation times; and that all parties will endorse a contract with the IVF physician or clinic. The agreement may also provide that the donor refrain for the pertinent period of time from certain risky behavior such as the use of illegal drugs, alcohol or tobacco products. The agreement should provide that the donor agree to abstain from sexual intercourse for an appropriate period of time prior to and during the retrieval process.

Of additional concern to the intended parents are provisions in the agreement that confirm the paternity and maternity of the offspring. Additional terms may provide for the termination of parental and custodial rights by the donor. These terms defining the parentage of the child and releasing the parental rights of the donor may be redundant and unnecessary as the statutes discussed above answer these issues as a matter of law. The parties may prefer, however, the contractual language.

Of consideration may be what would happen to the ova should any of the parties die during the retrieval process. Once the ova has been fertilized and donated to the IVF facility or intended parents, a provision should be made for the remaining cryopreserved embryos that are not utilized by the intended parents. The intended parents may claim ownership or may donate them to the IVF facility for future stem cell research.

Additional issues that the intended parents are concerned about and should cover in this agreement are the assumption of risk by the donor for any medical complications; the release of the liability of the intended parents by the donor in that regard. Finally, the intended parents may wish a provision to recover expenses paid or payments made to the donor should the donor breach the contract prior to completion of the retrieval procedure.

Concerns of the donor certainly include the payment of the donor's expenses associated with the retrieval procedure and medical evaluations of her. Moreover, the donor will want to receive a certain payment for the time and trouble associated with this time consuming retrieval procedure process. A set sum agreeable by the parties should be considered. In addition, the donor would likely wish to have her attorney's fees covered in the agreement. Virginia Code §32.1-289.1 prohibits the sale of body parts, but specifically exempts the sale of ova and sperm. The Act, specifies the payment of the surrogate's reasonable medical and ancillary costs. Virginia Code §20-162(B)(3). A note of caution, however, is that compensation for the recruitment or procurement of surrogates is a Class 1 misdemeanor. Therefore, it is this practitioner's opinion that the payments to the donor associated with an ova donation contract should be couched in the language of expenses.

There are very few cases which consider egg donation agreements. There are divorce cases between the intended parents regarding the right to utilize or acquire the cryopreserved embryos. A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000) (Order permanently prohibiting the wife from utilizing frozen pre-embryos held at a fertility clinic was affirmed. Husband's interest in avoiding procreation outweighed wife's interest in having additional children.); J.B. v. M.B., 2001 N.J. LEXIS 955 (Husband had order to advise the court as to whether he was to pay any fees associated with the continued storage of the pre-embryos, otherwise, the pre-embryos were to be destroyed); and Cass v. Cass, 91 N.Y.2d 554, 697 N.E.2d 174 (1998) (Pre-zygotes were ordered to be donated to the IVF program for future research and former wife did not have exclusive authority over the fertilized eggs per the parties' agreement with the IVF facility.)

Parentage is a fundamental issue and is addressed in the following cases. In the case of In the Interest of O.G.M., 988 S.W.2d 473 (Tx. App. 1999), the biological father brought suit against the biological mother seeking a decree declaring him to be the legal father of the parties' child conceived by IVF. The child in that case had been conceived by IVF, but was not implanted into the intended mother until after the parties' divorce. At the time the parties divorced, the IVF clinic had stored four frozen pre-embryos. The divorce decree did not address the disposition of these pre-embryos. The parties, however, after the divorce went to the clinic together where the mother attempted the IVF procedure one more time. The father filed a paternity suit three months after the child's birth. The father had also acknowledged under oath that the was the father of this child. The Court of Appeals in Texas agreed with him and rendered summary judgment in his favor.

In McDonald v. McDonald, 196 A.D.2d 7, 608 NYS2d 477 (1994), the divorcing husband sought custody of the twin daughters that were conceived by IVF utilizing his sperm and the eggs of a donor. The children had been born to the wife prior to the divorce. The husband sought to declare them either illegitimate or award him sole custody as his wife was not the genetic mother. The Supreme Court of New York ruled as a matter of law that the gestational mother, his wife, was the mother of the children and that it was error for the trial court to deny the husband's request that the birth certificates of the children reflect his parentage. This would appear to be consistent with our statutory scheme. Virginia Code §32.1-257.

In conclusion, there are many issues to be addressed in an ova donation agreement. Primary among those issues is the payment to be made to the donor and the commitment from the donor to complete the retrieval process. Such an agreement is necessary in order to protect the relevant interests of the parties. Such an agreement is in addition to any contract that the parties may sign with the fertility clinic. Although, the Act forecloses any questions about parentage, it does not address these issues that are of equal concern to the parties.

Endnote
1.  http://www.fertilityforum.com/resources/basicguide
2. Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 B.Y.U. L. Rev. 107, 116.
3. Id. at 118.

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