Egg Donation and Legal Contracts

At Fertility Source Companies (The Donor Source & The Surrogacy Source) we take all steps necessary to ensure that our egg donors are educated, informed, and protected before beginning their journey of donating such an amazing gift.

Here are some helpful answers to questions we hear most often regarding the legal process of egg donation. This interview was performed by Missi Lockwood, Fertility Source Companies Director of Donor Recruitment, and Robert Tzall of the Law Offices of Robert M. Tzall.

Missi Lockwood: What is your experience with egg donor and intended parent legal contracts?

Robert Tzall: Before practicing Advanced Reproductive Technologies (ART) law, I practiced contracts and corporate law in New York and New Jersey. Upon relocating to Nevada, I had the privilege of training with the one of the premiere reproductive law firms on the West Coast where I remain “Of Counsel”. It is very dangerous to practice ART law without the proper mentoring and training.

My egg donation clients are split between representing Egg Donors and Intended Parents. While my Egg Donor clients typically come from Nevada, New York, and/or New Jersey, I have had the privilege to work with IP’s from all over the world. Some clients come referred from relationships with egg donation agencies or reproductive medicine practices and others have come from word of mouth.

I see my role as: 1) insuring that Intended Parents are recognized as the true, legal parents of their children so they can raise them in security and comfort, both physical and psychological, and 2) insuring donors fully understand the rewards and consequences of their gift so they look at their donation as a positive experience, both physically and emotionally.

Missi Lockwood: The Donor Source requires an egg donor-intended parent contract for every single match. Can you share your opinion on the importance of this contract?

Robert Tzall: I am pleased that The Donor Source requires there to be a contract in place. It demonstrates a culture of openness and transparency.

I cannot emphasize enough the need for there to always be a written contract between the egg donor and the IP’s, with both parties represented by separate, independent legal counsel, for all incidents of egg donation. First, in order for the IP’s to be recognized as the legal parent of any resulting child(ren), some states and foreign jurisdictions require there to be a written contract between the parties before any egg retrieval takes place. Without a contract, the parental rights of the IP’s may be in jeopardy. Second, as a matter of fundamental fairness, the egg donor has the right to understand fully and completely the nature of her commitment.

Some clients come to me reluctantly because they see a contract as unnecessarily complex and/or formal. However, when I speak to them about the negative consequences of proceeding without a contract, both from a legal and practical point of view, they usually understand the need and become more comfortable working with an attorney.

Missi Lockwood: Do egg donors have legal responsibilities to any child(ren) born from their donation?

Robert Tzall: No, so long as the donation is arraigned properly. That means a contract between the egg donor and the intended parent(s) with both parties represented by independent, competent legal counsel. It also helps greatly if the donation can be arraigned in a jurisdiction with an egg donation statute. Even if your jurisdiction does not have an egg donation statute, an egg donation contract serves as clear evidence of the intent of the parties, should there be any attempts made to make a donor take legal responsibilities to any child(ren) born from their donation.

The jurisdictions where egg donors have been found to have legal responsibilities to child(ren) born from their donation involved circumstances where the donor and IP (typically both single) had a previous relationship and no egg donation contract and/or poorly drafted contracts that do not properly terminate the Egg Donor’s parental rights.

Another specific area of concern is ensuring that both LGBT IP’s be considered equal parents of their children born through an egg donation. Many people think that in light of recent Supreme Court decisions that LGBT IP’s will be treated the same as heterosexual IP’s. However, this is playing out on a state-by-state basis. And remember, many LGBT IP’s come from places where their lifestyle is illegal and/or both parents may not both be recognized as their child’s legal parent.

Missi Lockwood: Some women have concerns when considering egg donation – Directly from our Facebook page: “If people are going after sperm donors for child support who’s to say people won’t do that to egg donors?”

Robert Tzall: I do not see this as a great concern for donors working with like The DONOR Source. Those cases where sperm donors have been sought after for child support involves facts that would typically not be found when the donor donates through an egg donation agency. First, where sperm donors have been found liable for child support, there was no contract or an improperly drafted contract between the donor and the IP(s). Second, there was often a previous intimate relationship between a single sperm donor and an intended mother that did not end well. Third, due to a poorly drafted contract or failing to conduct themselves according to the terms of the contract, the donor’s post-birth conduct with the child went beyond that of a donor and took on a parent-child quality without the objection of the mother.

Missi Lockwood: What happens to the child(ren) in the unlikely event that the parents die? Can the egg donor be sought out for parental rights since she is genetically related to the child?

Robert Tzall: This question illustrates the need for COMPETENT legal representation. A properly drafted egg donation agreement will contain language that insures that the IP(s) acceptance of the donation is irrevocable and permanent. The Egg Donor is giving up her rights to be a parent to the resulting child forever. The resulting child(ren) will be the full and total responsibility of the IP(s) If one or both IP(s) die, custody and inheritance of ALL their children will fall to the surviving parent, decided according to a will or, if no will exists, then according to the laws of interstate as well as those concerning custody of minor children without legal guardians. However, there would not be legal basis for the donor to be sought out as a parent.

Missi Lockwood: Does the child(ren) have any contractual rights to find their egg donor when s/he reaches 18-years-old?

Robert Tzall: Typically, IP’s reserve the right to tell their children the circumstances of their birth. Donors agree not to make any attempt to contact the child(ren) without the permission of the IP(s). And both parties agree to ensure confidentiality as to the nature of their arrangement. That said, the child(ren) born from donated eggs are not bound to the agreement signed by the Egg Donor and the IP(s). That means these child(ren) can make attempts to contact the donor. However, no parties, including the egg donation agency, is under any obligation to give the child(ren) any information necessary to contact the donor.

All parties involved need to be cautious about what they post on social media and the like because if it’s posted to the internet, it’s forever. A bit of information from here and there can be put together to expose an identity that should not be exposed.

Egg Donors and IP’s can also consider anonymous egg donation. With this, the parties do not know the actual identity of each other. The egg donation agency conceals the identity of the parties using identification numbers. Such an arraignment would make it more difficult for resulting child(ren) to gather information in order to contact the donor.

Missi Lockwood: Do you have any parting advice for egg donors surrounding the legal concerns of egg donation?

Robert Tzall: Conduct yourselves according to the terms of the egg donor agreement. It is there for your protection. If you conduct yourselves according to the agreement, many of the concerns we have spoken about would be resolved.

Also, do not be afraid to address any of your concerns with your attorney – no matter how big or small. Your attorney is here to help you but s/he is not a mind reader.

Finally, if you don’t know, than ask. Ignorance of your responsibilities is not an excuse for performance.

Robert M. Tzall is the managing attorney of the Law Offices of Robert M. Tzall. Robert regularly represents donors, intended parents, gestational carriers, and fertility clinics and agencies. Robert is a member of the American Bar Association Section of Family Law’s Advanced Reproductive Technologies Committee, the Legal and Legislative Committee of the Society For Ethics In Egg Donation And Surrogacy (SEEDS) as well as the American Society for Reproductive Medicine’s Legal Professional Section. Robert graduated from the University of Miami School of Law and is admitted to practice law in Nevada, New York, and New Jersey. He can be reached at [email protected] or 702-666-0233.