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Ask an Expert
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| "Reach high, for stars lie hidden in your soul. Dream deep, for every dream precedes the goal." |
-Pamela Vaull Starr |
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Family Formation Law
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Embryo Donation
1. Why is it important to use an attorney during the embryo donation process?
It is very important to use an attorney during the embryo donation
process because you must remember that you are dealing with your
parental rights, as well as the lives of your children. In fact,
it is absolutely necessary to ensure that all of the donating couples’
rights have been waived, as well as issues such as inheritance and
future disclosures. Although many assume that the informed
consents submitted by your physician will cover all of the legal issues
that you may face, they often do not and cannot. My best advice
is to seek counsel before you proceed to ensure that the physician’s
consents are in order, as well as ensure that you have an agreement in
place between yourself and the donating/recipient couple.
2. What does the law say about embryo donation?
[Federal] law states absolutely nothing at this time about embryo
donation, yet many states are now considering how to handle these
unique family situations... We do have several states that have
addressed the issue of embryos in the divorce context whereby the
ex-wife or ex-husband wants to use their cryopreserved embryos in order
to have a child. In those cases, the courts have ruled that the embryos
are marital property and that one side cannot be forced to procreate
and become a parent against their will despite any consents signed by
the couple while they were married.
3. Are there legal differences between embryo donation and embryo adoption?
Legally, there are no real differences between donation and adoption
except in how the agency chooses to handle the arrangement. In
the donation arrangement a home study is usually not required, yet in
the adoption arrangement a home study is obtained.
4. What are the important parts of an embryo donation contract?
The most important part of an embryo donation contract is the entire
contract. Every section is there for a purpose to ensure that
ultimately your rights are protected every step of the way.
5. Do clinics often require contracts of their own to protect them? Should I have my own attorney review these documents?
Absolutely, and they are called informed consents. As I stated in
Question 1 above, you should always have an attorney review these
documents before signing them. You should always do whatever you
can to protect yourself and your children.
6. What if my donors change their mind after the procedure and want the baby? What are their rights?
Currently, since there are not any laws, either legislative or case
law, we have relied on the premise that embryo donation, as is egg and
sperm donation, is the transfer of property. In fact, the cases
involving divorced couple and their embryos support this premise.
In addition, the courts have consistently stated that an egg donor
and/or sperm who have been adequately advised and who have waived their
rights knowingly cannot later change their mind; therefore, this should
not be an issue at any time soon.
7. Can the contract specify the level of contact we have with the donor?
Absolutely.
8. I am a donor. Can a contract protect me from inherency claims from the future children?
Can it protect me from being asked to assume custody? As I stated
in Question 6 above, the waiver of rights, as well as the acceptance of
rights, must be reciprocal; therefore, each party should be protected
from claims on either side of the donation/adoption with the proper
agreement in place.
9. Is embryo brokerage (the buying and selling of embryos) legal? What about reimbursement costs?
Currently, we have no [federal] legal guidance regarding the buying and selling
of embryos. In fact, some have tried to compare it to egg
donation where the egg donor is compensated for her pain and
suffering. Yet, due to the fact that embryos are created from the
joining of the egg and sperm and can be implanted to create a child,
many of us in this field have determined that embryos should not be
bought and sold. Ultimately, this is a gray area [in most states] that will
eventually need to be addressed; however, until that is done, I would
always advise that embryos not be bought and sold. Reimbursement
costs for expenses such as storage fees have always been
acceptable.
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Nearly 400,000 embryos are stored in the United States,
88.2% are targeted for patient use, and
2.8% are available for research.
FERTILITY AND STERILITY VOL. 79, NO. 5, MAY 2003
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