Empowering individuals to make informed decisions is key in gamete (sperm and egg) and embryo donation agreements. The goal is always to have clear and respectful contracts that specify and uphold the rights and responsibilities of all involved. With careful thought and consideration by Donors and Intended Parents up front to lay the groundwork, and the care of attorneys experienced in family formation, the agreement drafting and negotiation process can move reasonably swiftly and painlessly to completion, to allow parties to turn their focus back to their goals of growing their family or helping others to do so.
The most important thing to consider when drafting egg, sperm or embryo donation agreements is relationship. What is the relationship now between Donor and Intended Parent(s), and what is the relationship planned to be in the future? There are some donations which are fully closed donations where no party knows one another's identifying information. Sometimes those donations are done through banks, where there is no direct agreement between Donor and Intended Parent. Sometimes those are done as "fresh" donations (with planned and upcoming active participation by the donor to produce the egg or sperm for donation). In those scenarios, everyone involved must take special care to conceal identities to the extent desired by the parties, and lay ground rules for if, when and how disclosure may be made in the future. While as an attorney I am an agent of my client and am obligated to adhere to their wishes on disclosure aspects, research has shown that disclosure--early and often--leads to better outcomes for donor-conceived people and their families. (https://www.reproductivefacts.org/news-and-publications/fertility-in-the-news/positive-impact-early-disclosure/ and https://www.psychologytoday.com/us/blog/building-your-family/202401/openness-in-donor-conception-is-essential). So I always encourage openness. Though I do understand that that path isn't right for everyone.
Some donations are between parties that know each other well--family members, friends, other people in shared social circles. And some donations are between people that fall somewhere in between fully known and fully undisclosed. Careful consideration must be paid to whatever the relationship may be.
When drafting donation agreements, there are several topics that should always be addressed, including but not limited to:
•What State’s law governs?
•Reference to relevant statutes
•When the donation is deemed to have occurred
•How many times are we doing this?
•Term—over what period of time?
•Rules about freedoms to withdraw consent & stop participation—When? How?
•Intentions of Parties regarding “legal parentage”
•Compensation? Expenses? – dependent on state law!
•Logistics—When and Where to be?
•Memorialize testing done and what’s still expected
•Changes to daily life
•Insurance considerations
•Plans for the future:
Privacy & Confidentiality
Disclosure to kids - Who can tell whom? What can be told? When?
Medical disclosures down the road
Every donation agreement is different and unique to the parties involved. A cookie-cutter, one-size-fits-all approach, or a rush to complete an agreement rarely helps anybody and leaves a lot of room for inaccuracies, incompleteness, and problems down the road which could be significant. Always consult with an attorney in your state or in the state of the law governing the agreement, so you have proper representation and a well-drafted agreement that accomplishes what is needed, and protects you now and into the future.
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**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact our office should you wish to discuss the specifics of your situation and to hire our firm to represent you.