Tuesday, March 29, 2011

Do I really need a lawyer for egg or embryo donation?

Will and I went to a talk about legal issues in third-party reproduction. It was informative, but mostly, I found it frightening. My main focus has been on whether I can choose one of these paths if I need to and have it feel like the right step. Feel at peace with the decision. That's where my energy has been going. I trust the folks we are considering receiving donated embryos from. I know where they are coming from and where they stand; I know they are at peace with the family they have and aren't looking to parent again. And with an egg donor situation, I've focused on how to find an egg donor that felt compatible with us intellectually, physically, and that would result in a baby (most important part is the last one).

I hadn't really thought that I needed a lawyer to do egg donation or embryo donation. But going to this talk made me question myself. It was run by two third-party reproduction lawyers who talked a lot about contracts and statutes and case law. And it made me wonder: do we really need contracts and lawyers to negotiate all the details of the future? (they suggested THREE lawyers for embryo donation - one for genetic father, one for egg donor - who they say should be re-consented, and one for recipients - egads!). If the laws change about how embryos or donated eggs are seen now, would this be something that would negatively affect us? My questions felt so basic that I didn't voice them. I actually found the whole meeting quite anxiety-provoking. Somehow it just rubbed me the wrong way. I guess because what I'm trying to do here is start a family and having lawyers and contracts and what not involved, makes it feel so...business-like.

Those who have done embryo donation or egg donation, have you used a lawyer in the process? What purpose did it serve? Looking back, was it really necessary? Those who didn't use a lawyer, is this something you wish now you had done? Why or why not?


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  1. Hi Mo,

    For our embryo adoption we used an adoption agency who handled all of the legal contracts. We just had to agree upon the terms and have them signed and notarized. Basically the terms that were negotiated was the amount of contact to have with the placing family and future visitation.

    Our embryos were also created with an egg donor. She was not included in this process as she was already clear about the situation and signed all of the necessary documents when she became an egg donor. I have pictures of her and basic information about her medical history and personal interests, but she was not involved in our adoption. We dealt strictly with the placing family (placing mother and her husband, the genetic father) when we were finalizing contracts. I would think that what we have would be sufficient in your case, as this is what Nighlight Christian Services (our agnecy) uses as their standard for embryo adoption.

    Let me know if you'd like to see a copy of our contract. Perhaps you could have something similar drawn up (you could use and attorney or even use lagalzoom) and have it signed and notarized by all parties.


  2. I'm sure you will get some posts from people who have done this already, at least I hope so.

    We are about to do a donor egg cycle at a clinic with an in-house donor pool, and we are not retaining a lawyer. I am comfortable with this, and (full disclosure) I am a lawyer.

    The clinic uses a standard contract which it prepared with its own lawyers, and its language transfers ownership of all eggs retrieved from the donor (and subsequent embryos) at the time of retrieval. The clinic has been using this contract, or one with similar language, for over ten years with no problems.

    In most states in the U.S., both eggs and embryos are currently considered property. As such, the usual laws which apply to transfer of property apply.

    I think whether or not you need a lawyer depends on the specific situation you are in and on the laws of the state where you get your treatment.

    At least for our situation, I just don't see that we need to retain our own attorney to do something which has been done many times before and is understood by both sides.

  3. Hi Mo...long long time lurker, and physician, in the trenches for 6 years. Your story resonates with me big time..On our 6th (thats right, 6th) donor egg cycle...all but one done in the States, and one in Canada where I am from...We used a lawyer in Canada, and this scared the daylights out of us...ART legislation here means you basically have to sneak around under the cover of darkness to meet with the egg donor, etc. Horrible experience. Didn't work anyway.

    Have been doing donor egg in the Sates, and the clinic we are dealing with has any legal issues sorted at their end, with standard contracts they have used for years...we do not have to deal directly with or retain a lawyer. It's a smooth seamless situation. Money is paid, donor lists are perused, 3 candidates ranked, selected, and thats that.

    We have had a few pregnancies, with this clinic, but no baby. Yet. Embarking on donor egg thru the States, and gestational carrier here in Canada. The lawyer situation at the Canadian end for a gestational carrier is ATROCIOUS. Many meetings. Many scary expensive meetings. You need to have nerves of steel to get thru it. And so far, so good. We are positioned for transfer in May. The carrier has a lawyer, we have a lawyer, everyone knows there was an egg donor, and for large sums of money, everyone is prepared to make the magic happen.

    We've been down the path you are staring at now, and its a tough choice for sure. You are clearly a thinking sort of gal, which I commend you for. But, in the end, the only question you need to answer, is "what am I prepared to do to build my family?" and then, do it. There's a point where all the analysis begets paralysis...so, listen to your heart and your head, but mostly your heart. Good luck. I will be thinking of you, as I have been, for many many moons...

  4. I know how daunting it must seem to have lawyers involved in such an intimate process, but lawyers - the good ones - are there to look out for you and for your future child.

    It is critical to find an attorney in your state who is well versed in this kind of stuff because the laws are so varied from jurisdiction to jurisdiction. But, since the laws are so wonky having an advocate who knows them on your side is invaluable.

  5. Typically, if the baby is born to you, there is a presumption that it is yours. However, that said, I'd definitely get a lawyer...they are annnoying, time and cost-consuming, but they will make things iron-clad. It will be a cost worth taking on, trust me, if for nothing else but peace of mind. I don't think you need 3 of them...and I'm not sure about the egg donor, since she has no avenue to pursue, but it would be worth finding a lawyer versed in this and then getting their opinion. That is my legal opinion. That being said, this is a good path to pursue...and, trust me, if you do go this way, you won't miss the genetic connection once that baby is moving around in there and once it is born!

  6. I needed one for my DE cycle. My doctor worked exclusively with one local agency and THEY required a lawyer. In the end, it was $500 dollars and an hour of my life, and she did change a standard contract to reflect the fact that I was parenting solo. Also needed to see a psychologist :)

  7. When I went through my DE cycle at CCRM, I didn't need a lawyer. There consents (as you know) are crazy detailed and covered everything. I guess you could always bring your own to look them over if you wanted. Good luck with whatever you decide.

  8. Mo...same thing as R. As per my DE IVF cycle at CCRM, I did not need a lawyer. With my ladies that I frequently chat with that are DE'ers, the ladies that choose annonymous donation/in house pools do not have lawyers. Not sure with respect to embryo donation but likely that may be a type of family building option where a lawyer would be a good idea. This was one perk that I liked about an annonymous DE donation...less legal red tape to deal with as the ART laws have not caught up to the technology. I have heard of annony DEmb donations and I assume that may lead to less legal requirements??

  9. We used a lawyer for our DE cycle. It was a heavy but positive experience for us. I cannot imagine not having had her as a resource.

    It was required by our agency (since DE were sourced outside of the fertility shop). I interviewed 2 on the phone and both were $700 for the event, start to finish. Our lawyer helped to advise me on coordinating schedules since we were moving very quickly. I would have missed something without her. Had she charged more, I would have seen value in it.

    A lot to be digested that is not presented from the RE. Like what happens with leftover embryos - some times the donor chooses to provide direction on what can be done with the ones that are not transferred. You also want to consider how your child will be able to contact her upon the age 18. Divorce and death planning too but I dont want to end on that note.

    I am glad to see you with some options Mo-go-go.

  10. Mo, I feel your pain. I think first you stated the most important element - you trust the people you are going to do this with. One of my best friends is the one who donated her eggs. She has her family and wanted me to be able to have the same. In such I had to worries that she would want to parent our child. We modified a standard contract ever so slightly and all parties felt comfortable with it. Go with what you feel comfortable with and don't feel pressured by the lawyers. Hope this helps. :)

  11. In CA, where I live, you're required to have lawyers for egg donation (one for recipient, 1 for donor). Our donor is my best friend, so that felt weird, but we had no choice. And the contract actually covered some things I wouldn't have thought of, so I guess it's useful to have it all clearly laid out, even though I know we would never have had a conflict with her. I think it's not a bad idea in general to have the extra security and be able to make sure everyone's on the same page. Good luck!

  12. Just wondering too that NY has weird laws about surrogacy so I hope they don't about donor embryos. I would go with a lawyer for everyone just to make sure everything is clear even if it weren't required but I imagine it must be. I hope things finally turn for the better for you.

  13. I am in CA and yes, we needed an attorney for our side of the egg donation process and our egg donor needed her own.

    We also looked in to using donated embryos and we would have needed an attorney for that, too. It is considered a transfer of property. However, if a donor had been used to create the embryos, how she consented to their use by a third party would have hopefully meant no additional attorney for her. Those that I've known to have used donated embryos only needed one attorney.

  14. I have on my 6th DE cycle, we had 3 different donors. No lawyer, these were all in-house anonymous donors. Everything harvested was mine after retrieval. THe lack of a lawyer has not bothered me on bit, but the clinic had all the legalese we both signed.

    I think if we had chosen a known donor I would have used a lawyer, and certainly for surrogacy lawyers are needed. If the donor/s want lawyers I'd say that is up to them to supply.

  15. I'm an attorney. Not in the field of 3rd party reproduction. But I would def recommend seeking legal advice. It'd be worth the extra cost to avoid heartache down the road. It depends on the laws in your state too. Have you seen the CNN program on a gay couple? They used a surrogate and egg donor, so it was more tricky, but the non-bio father had to jump through hoops to become the legal parent.

  16. Hmmm... not sure about the two persons who said they needed a lawyer in CA for embryo donation. I am in CA and did embryo dontation and there was no lawyer. My Dr. told me in CA if you physically give birth to the baby it is legally yours and it is still only considered a tissue donation, not really "real property" because no monetary value can be placed on it..they have to be freely donated. So...conflicting information...but nonetheless...we did it without a lawyer. Our clinic had their own contracts and transfer of tissue documents for both donors and recipients. Our donors also used an egg donor through an agency and she did not have to be recontacted and sign off. It was all quite simple and very inexpensive in the world of ART. All we paid for was the clinic processing/admin fees (which probably covered all the legal items they took care of in advance) and then the FET costs and storage for the embryos. In total it was just over $6k for the whole process and we now have a beautiful baby girl from it. And I am convinced she is the child God meant for us to have...she is perfect in every way...fits in with our family and we are all very, very happy.

    I've posted before that if you ever have any questions about EA...I would be happy to talk with you. We have a biological son from IVF also, so we have perspective on having both biological and non-biological children.



  17. My sister is our donor and while the clinic does not require us to have a legal agreement in place, we're currently getting a contract in place between us. We're in total agreement about everything (disposal of extra embryos, etc.) and my sister and I are really close and have never had any drama between us so it feels kind of unnecessary, but we think it's the right thing to do just to make sure we both are protected. The lawyer I found here charges a $850 flat fee for a known donor egg contract. We'll be paying for my sister and BIL to get their own representation as well. That will probably be, tops, an hour phone conversation for them with their lawyer so probably $400 ish.

    Don't know if that helps or not. Good luck with investigating all of this!

  18. We are planning to have our donor embryo transfer this May and have not hired a lawyer to review consents nor to review contracts. Our embryos were donated to our clinic, which in another state and the donors are not known to us.
    In the state where we live any child born to a married couple is legally the offspring of the women that gives birth to the child and her husband unless she goes to court before the child is born, say in the case of a gestational carrier.
    Like your first poster we felt comfortable with the consents that were signed when the embryos were donated and with the consents that we signed. Perhaps that is naive, but our clinic has also been in business for years without any problems in this area and I am not sure that if problems were to develop then a lawyer would really be all that helpful.

  19. I was directed here by Roccie. we're just beginning our DE journey, but from what I gather, our clinic has all the legal and contract stuff figured out (assuming we use an inhouse donor)
    this scares me but not enough to turn back!

  20. Nope. Didn't use an attorney. As for getting a lawyer for the egg donor, IMO, that's totally not necessary. When I was talking to a woman with embryos before I connected with my donor, I consulted with an RE at her clinic. I asked about the egg donor, and he said basically, "don't ask, don't tell." Most egg donor contracts have no provision for what is done with the remaining embryos. It is up to the discretion of the parents.

    As for attorneys for you and the donating family, I don't really think it's necessary. This may not be as common as egg donation, but it's common enough that there are several boilerplate contracts out there. My donor and I combined the language from a couple of boilerplates, and made a few changes that applied to us. I'd be happy to email you our contract and the others I came across. It's pretty straightforward. As has been said, legally, it's tissue donation, not adoption.

    I think the lawyers you met probably see the worst case scenario situations, which I can't imagine involve donor egg or embryo. More likely surrogacy cases. Also, I hate to say it, but they are looking for clients. Of course they want to charge you for drawing up a contract you could draw up yourselves. I also agree that you can feel at peace with the family that's offering you the embryos. They want you and Will to become parents.

  21. I'm a lawyer myself and I felt safest hiring lawyers for all my third party reproduction, um, adventures.

    In your case, there are a few things I'd consider. First of all, what are your clinic's requirements? For obvious reasons, most are going to require you to have some kind of written agreement in place, though you can probably draft one yourself or the clinic may have its own standard form.

    If you go with the known donated embyros, you'll have to check the original contract (if there was one) between the egg donor and the recipients. A lot of donor egg contracts forbid donation of the embryos without the egg donor's express consent.

    Also, with the donated embryos, since there are so many of them (I think you said something like 14?), you probably should have some agreement in place about what happens if you finish your family building, but still have some left over. Can you donate them to someone else? Do you need the consent of the couple who donated them to you?

    Personally, I'd feel a lot safer having a contract (with or without a lawyer) in the donated embryo scenario, because, honestly, you never know what might happen in terms of your relationship with the donor couple.

    I know everything is fine now, but situations and relationships can change drastically and you want to make sure that everyone is on the same page.

    If you went with just an anonymous egg donor rather than known embryo donors, I'd be a lot less concerned about providing for every detail and more comfortable without a lawyer.

  22. Wow - lots to think about. I was on the other end of the spectrum and considered donating my left over embryos. The recepient was at a clinic in Denver but I don't know specifically which one. We never got as far as the legal stuff because most of the other hoops her clinic wanted us jump through were so intense that my DH & I both kind of freaked. It was not an easy decision and I was very upset the donation fell through.
    FYI: I never did have a bio child. I am a parent through adoption and was still happy to part with my embies. Currently they are just sitting on ice as I have no idea what to do with them. Oh, and I live in Canada but that didn't seem to be an issue at all. I just can't receive any $$ for the donation, which was fine with me.
    Personal opinion: it never hurts to have legal representation. If the original donors were from a mass pool, I suspect that it'll be a lot easier and maybe just a lawyer for your & now your friend would be in order.

  23. I have used a lawyer and it was great---I would suggest it strongly to everyone---having the assurances and putting into the contract so many things I wouldn't have thought of, was invaluable...and long after the few dollars for the attorney are gone (frankly a miniscule cost compared to the ED cycle) we have a contract (that hopefully we will never have to enforce) but feel protected.
    I cant see why I wouldn't use one for my next cycle, and frankly was also glad the donor had one---it was small expense to ensure all agreements are clear, especially around the points of per diem payments and "ownership" of the embryos after the cycle

  24. Third party reproduction is financially, physically, and emotionally exhausting. Most often, parties find themselves using donor eggs or donor embryos after exhausting other options. Patients wishing to build their families through third party reproduction have a goal and end in site- they want a baby. Most likely, the means to this end is using an egg donor and/or embryo donor. While unlikely that the intended parents and the donor would reneg on the agreed upon transaction, it is vital for all parties to be protected by legal counsel who are experienced in this field. After exhausting money, time, and emotions, think of how horrible it would be if the donor came back a few years later and claimed the child was hers. Lawyers are available to think 10 steps ahead of the intended parents, and it will only secure the transaction, leaving no room for unforeseen future problems.

  25. Just adding to the pile here...when we did DE, we wondered if we would get a lawyer. The Donor Egg agency we worked with offered us a standard agreement that had originally been drafted by a lawyer. It was modified some to reflect that we would like the option for any future kids to be able to contact the donor when they turned 18. Other than that, we felt comfortable with it. It had the standard things: once the eggs are out, they are ours. We get any remaining embryos to do with what we wished. We couldn't sue her if there were any genetic problems with the kids.

    It may have been advisable for us to have another lawyer read it as well, but perhaps like you, I felt uncomfortable with all of the "leagalness" of it.

  26. Another great discussion here! I always assumed I'd have to get a lawyer if I did DE/embryo donation. My friend who did DE wanted her children to be able to contact the donor when they turned 18, if they wanted. I thought that was pretty cool. I'd want my kids to have that option too.

  27. Hi Mo- I have been following your blog for awhile but have never commented. My husband and I also went to a meeting on this last week (sounds like the same meeting). I left feeling confused because our clinic told us that we did not need a lawyer. We are currently on a waiting list for donor embryo's. I have a friend who has triplets through embryo donation and she did not use a lawyer. In the end, my husband and I have decided to use a lawyer. Since embryo donation is so new, we don't want to take the chance of there being any legal problems in the future. Best of luck to you!

  28. When I received my donor embryos from PFC in SF, there was no lawyer at all. It sounds a bit overkill to me. But then again, it's a lawyer's job to sell you on their services. ;-) I honestly do not think that you need one. The egg and sperm are being handed to a disinterested third party (the physician)...pretty sure that this removes the donor's rights to the embryo.

  29. Like Lisa and R, we used a donor in the CCRM pool (one of the many reasons we decided to go "in house"). When you start getting a surrogate involved, things change and I would definitely want both us and the embryo donors to have a lawyer. It's hard to predict the future...

  30. We used a surrogate and hired one attorney for $4k to cover the whole legal process for us. In the end they were not able to provide to us what we needed through the courts, a pre-birth order for maternity and paternity. Instead, in MI, we learned (during week 26) that the birth mother is always considered the legal mother and we were forced to adopt our biological child. Lucky for us, our poor attorney covered the "adoption" pro-bono. SO, having been down one long legal road, looking back I would first call your local court and ask them what they would advise you to do. If they have ever had a messy legal donor situation in your county they will be able to tell you how to legally avoid it yourself. I SO wish I had the foresight to call our courthouse FIRST so that I would have known going into our situation that we would end up adopting our biological child period, no way around it. Then again, maybe it would have scared me away from the whole process and I wouldn't be holding my beautiful 9 month old baby girl? I'm so glad nothing scared me away from our journey--so, so, so, so glad. In our case, ignorance was bliss. In the end, I would call--learn the laws of your county/state. I would then talk to your clinic and see what their legal protocol is and THEN I would just do it and never look back. Once that baby is in your arms this will ALL be worth it. Adrenaline and love will get you through the rest... You will remain in my thoughts and prayers.

  31. Thank you for sharing your experiences of surrogacy!
    Help us to promote awareness of surrogacy through World Surrogacy Day on 4th November 2011...

  32. You have been on my mind a lot lately so I thought I'd pop by just to say hello. I'm accustomed to not seeing posts from you sometimes for weeks at a time, but usually when someone is on my mind it means that something is going on with them.

    All that to say that I'm thinking of you and Will.

  33. I had my first child through IVF, but both my sisters have offered their eggs and wombs if I should need them in future. But both have a slew of their own little stipulations. One sister wouldn't want her egg in her womb. She'd think of it as hers. The other is fine with whatever, but if my husband and I should die, she'd want the child if it were her egg, even though it would rip that child away from his older sibling. She might even fight for the child if my husband died and it was her egg.
    And this is just FAMILY. Not strangers who may or may not change their minds at any point along the way. I don't know what rights (if any) donors have once the child is born, or if the host parents die. Scary.

  34. Yours is the first blog I go to when I look to catch up. I think of you all the time and wonder how you are doing.. Update when you have a chance.. Lots of folks out here rooting for you guys!

  35. I left you an award over at my blog today. Sending you and Will lots of love...

  36. How are you, Mo?
    Hope things are well.

  37. Are you OK? It's been a rough bit, and I hope that you're healing and taking good care of one another. Just wanted you to know that the blogosphere is thinking about you (or at least this tiny corner of it is...). All the best.

  38. Remember that one time?

    When you had a blog?

    That was awesome.

  39. In Oz, donor embryo and egg donation have a very clear legal standing i.e. once the process of egg pickup is done and the egg is fertilised by the sperm, the legal ownership passes to the recipients. I've used donor eggs, donor sperm (Xytex so from the US) and full anon donor embryos and never needed legal advice. I don't regret it because the law is pretty black and white: once the paperwork and technical shit is done, the ownership passes to the recipients.

    When my surrogate terminated my healthy (genetically mine and my husband's) baby boy last year at 22 weeks .... that's when I regret not getting legal advice, even though surrogacy is not enforceable here even with legal advice. As recipients we're pretty much f*cked.

    I realise its been a while since your last post. I really hope you're both doing ok (as ok as you can be) and also that things are moving in the right direction for you both.

  40. I have been stalking your journey and was just checking in to see if you have made a decision or made progress. Your story really touched me and I'm hoping to see a baby for your in the future. Best of luck and stick baby dust to you.


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