In Vitro Fertilization/Egg Donation - Legal Aspects

As with many of the pioneering reproductive technologies, the law continues to struggle to keep pace in defining each party’s ultimate role. Egg donation involves the removal of one or more eggs from a donor, fertilization of the egg by the Intended Father’s sperm, and the transfer of those embryos to the Intended-Recipient Mother.

To date, there are no judicial decisions or statutes that sets forth the rights and obligations of the participants in these agreements. Under the Uniform Parentage Act, maternity and parental rights may be established by genetic testing, completed adoption process or by giving birth to the child. Thus, in a standard egg donor/egg recipient case, where the egg recipient contracts to receive the egg and deliver the child, her name and her husband’s name have traditionally appeared on the original birth certificate.

In the case of Buzzanca v Buzzanca 72 Cal. Rptr. 2d 280 (1998), the court decided that the genetic makeup of the child does not necessarily dictate whose names appear on the birth certificate. Instead the "first causes, prime movers, of the procreative relationship" are to be viewed as the legal parents.

It is important that all parties to an egg donation agreement participate in psychological and legal counseling at all stages of diagnosis and treatment in order to assure that the parties have had an opportunity to appropriately examine and evaluate the risks involved in the medical procedures, as well as the legal ramifications of entering into the written Egg Donor Contract.

One of the most critical elements of an Egg Donor Contract is the specific relinquishment of parental rights such that the child born under the agreement is considered the legal child of the Intended Parents and to establish that the Intended Parents "consent" to the reproductive treatment. Voluntary and informed consent must be obtained from an egg donor prior to the aspiration, which would include a thorough medical and psychological screening, genetic testing and social disease testing (including HIV).

The psychological screening process plays an important role in obtaining free and voluntary consent for the aspiration of an egg. As stated by an egg donor who was clearly psychologically prepared for the procedure:

"I am not emotionally attached to my eggs. I do not go into mourning every month that I ovulate and lose an egg. I am not giving my couple a baby, I am giving them a chance to create a child. I cannot create their child. It is their desire, action, persistence and sperm that creates the child. If it were not for their desire to have a child, this particular child would not exist. I cannot guarantee that they will have a baby. All I can do is donate my eggs and the rest is up to them and God."

  1. Establish financial responsibility on the part of the Recipient Couple for all expenses incurred pursuant to the contract.
  2. Declare that the Recipient Couple is financially and legally responsible for the child no matter what. Additionally, the Recipient Couple shall have full custodial and parental rights to the Child.
  3. All parties must have legal and medical informed consent.
  4. All parties must complete social disease testing (including AIDS). Additionally, the Egg Donor must be medically examined and declared medically appropriate for the program.
  5. With recent breakthroughs in cryopreservation, or the freezing of eggs, for later use in infertility treatment, it is important that couples consider the use, storage and disposal of excess embryos not used for the initial medical treatment. As these technologies progress, the period of time an embryo can be viably stored and used is likely to increase dramatically. Thus, the ultimate disposal and use of excess of eggs should also be considered prior to entering into an Egg Donation Contract.
  6. Establish specific responsibilities of each party so as to minimize subsequent misunderstandings.
  7. ED, Inc., should keep records on all parties in the event information is later needed for legal or medical reasons.
  8. Detail legal and psychological framework so all aspects of this process are thought out, considered and pondered by everyone prior to entering into the agreement.
  9. Outline confidentiality concerns and provide for privacy for all parties.
  10. Stipulate that the laws of California will govern this contract.