Article from the American Fertility Association, April 27, 2011.
Although this article concentrates on egg donation, the concepts can apply broadly to any known gamete donor.
With the explosion in the use of donor eggs as a viable method of assisted reproduction, the medical and legal world entered a new era of third party reproduction. Because of the changing landscape of third party reproduction in general, and egg donation in particular, novel legal disputes and conflicting resolutions between the states have emerged and will continue to do so. The legal disputes and their resolutions have evidenced that critical to any third party reproduction arrangement is the need to clarify the role of the donor and of the intended parents at the outset and in writing (and in accordance with any applicable state law since family law is the province of the states – each determining its “view” on determination of parentage.). Even where a written agreement was not required many court cases would have had different results had there been a clear written record of the various parties’ intentions. Bitter parentage and other disputes would have been avoided had there been a careful legal analysis and understanding, memorialized in writing, before entering into any of these arrangements.
Absent clear applicable law, which is sparse in the egg donation arena, legal agreements will be heavily and perhaps exclusively relied on to clarify parentage
The medical differences between sperm and egg donation have made it difficult to apply sperm donor laws to egg donation (as many have tried to do) and have created challenges to the evolving law and practice surrounding egg donation. While there is a minimal medical role played with sperm donation, the medical practitioner plays a significant role with egg donation. Egg donors must undergo a lengthy medical procedure, beginning with screening and through retrieval of the eggs. Furthermore, unlike with sperm donation, egg donation still usually requires the careful coordination of the cycle between the donor and the recipient.
There have been efforts to standardize medical practice through uniform consent forms such as developed by American Society of Reproductive Medicine (ASRM). The medical consent forms, now widely used, were developed for the most part to advise the donor and the recipient from the medical perspective and to protect the medical practice in the egg donation process, primarily due to the extensive involvement of the physician with the donation process (as differentiated from a sperm donation). Of secondary consideration then in these medical consents was/is the legal ramifications for the future regarding parental rights. Furthermore, such consent forms have not and will not be able to address all potential areas of liability. In fact, medical services related to egg donation have become progressively more exposed to new legal claims. That is because Assisted Reproduction Technology (ART) cases present a unique phenomenon by involving not one patient, but potentially up to six patients (possibly two intended parents, two gamete donors, and a married gestational carrier), all of whom are owed a duty of care by the medical practitioner. The existing consent forms do not come close to addressing potential liability between the medical service provider and the person signing each form. Moreover, medical and other professionals have multiple and sometimes conflicting obligations to each of these patients. Because clear duties of care have not been established in any uniform way, we can expect to see varying results in different jurisdictions from resulting court cases. There will also be more cases in which the different involved parties come from different states, and may be from a different state than the medical practice, all of which complicates any applicable law and makes compliance difficult.
This “muddy” picture of the world of egg donation in particular and ART cases in general, both past and future, illustrate the complexity and novelty of the legal issues and the lengths to which parties will go to assert or to deny parental rights, and the critical need for legally clear agreements from the start as a means of clarifying the respective intentions, rights and obligations of all of the parties. No court case has actually addressed the enforceability of egg donor agreements per se, but the cases that we have seen over the last two decades illustrate the difficulty courts do have when trying to tease apart the various parties’ rights in third party arrangements and the significance and reliance the courts do place on any legal agreements entered into by the parties. The cases suggest a need not only to review existing protocols, consents, and documentation, but also further highlights the critical need for detailed well informed and advised agreements. The cost benefit analysis also supports entering into a written donor agreement between the parties. While the cost for such an agreement is relatively low, the benefit in protecting the parties into the future is certainly high.
Absent clear applicable law, which is sparse in the egg donation arena, legal agreements will be heavily and perhaps exclusively relied on to clarify parentage consistent not only with the parties’ initial expectations, but also with existing analogous laws as well as public policy. Courts will also turn to any such agreements or consents for that matter to determine any liability of the medical practice. As the field of third party reproduction continues to evolve and grow, the more that can be particularly stated and defined in a written legal agreement between the parties involved from the start, the less likely the parties and those that assist them will ever face each other in a court of law to decide their respective legal rights and who is the legal parent of any resulting child.