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ARTICLE:
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.
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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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