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Egg Donation and Reproductive Law

 

 

 

Surrogate Attorney Therea M. Erickson

 

The surrogacy law offices of Erickson Law will help guide Intended Parents and Egg Donors by offering solid, fact-based information about an often confusing and emotion laden area of egg donation law. To help people understand and think through the issues of egg donation, Attorney Erickson provides Intended Parents and Egg Donors both checklists (See Article, Beginning the Process) and warm, contemplative articles (See Articles and Media Appearance). When it comes to guiding Intended Parents and Egg Donors, egg donation attorney Theresa M. Erickson offers our clients a powerful resource and a recipe for success. In addition, reproductive lawyer Theresa Erickson will provide you the highly specialized, private legal services that are needed to protect the parties' legal rights, as well as the Intended Parents' rights to their baby. In the event a surrogate or embryo donor is needed, please refer to our page on Surrogacy or Embryo Donation.

 

 

Erickson Law, a Professional Law Corporation, will guide you and help you with the following:

 

- Advising the Parties as to their rights and responsibilities under egg donation arrangement and reproductive law
- Preparing or reviewing the complicated egg donation agreement as advised by a surrogate attorney
- Referral to experienced attorneys who are able to act as the independent counsel for your egg donor
- Preparing letters of release for the agencies and physicians involved in this egg donation
- Providing agencies and physicians required updates as to the status of the egg donation agreement
- Manage Funds in the Client Trust Account and ensure release of donor compensation and outstanding medical bills
- Provide all other legal services that may be necessary to help you establish your legal rights to your baby
- Provide any additional legal services by a reproductive lawyer that may be necessary, especially in the event where parentage is disputed or in question

 

Legal FAQ's for Egg Donation

 

 

As an Intended/Recipient Mother, do I have to adopt the child that I carry myself?

Legally speaking, in the United States of America, absolutely not.  You are the legal (and presumed) mother as you are the woman giving birth to the child.  Now, if you are married and later go through a divorce and complementary custody proceeding, do not fear if you are threatened with losing custody of your child due to being the mother of a donor child.  This may seem very hurtful, but it is divorce, and I have seen it used by angry soon-to-be ex spouses, so do not let this tactic unnerve you in any way – a child by egg donation is legally your child if all legal precautions are taken.

As an Intended/Recipient Mother, single Intended/Recipient Father or Gay Male Couple do I have to adopt the child that my gestational carrier/surrogate carries?

 

Well, you may have to depending upon where your gestational carrier/surrogate gives birth.  In California, adoption is not required whether you use an egg donor or not; however, some states require that both or at least one parent is biologically related to the child in order to circumvent the adoption process legally.  The best advice in this situation is to contact a Reproductive Lawyer who can set you on the right path.

If I use a foreign egg donor, will the baby be a U.S. Citizen?

In a nut shell. the child will take your citizenship status as you are the legal parent(s). 

 

Will my child created via egg donation be a dependent on my taxes?  What about for insurance?

 

Yes, if you are the legal parent, the child will be a dependent on your taxes.  As for your insurance, the same applies; however, make certain your policy allows you to add dependents before you become pregnant.

 

Does my insurance have to pay for the Donor Egg (DE)/IVF Procedure?  How about the delivery?

 

No, your insurance does not have to pay for the procedure.  In fact, your EOC (Evidence of Coverage) will likely list the procedure, as well as all donor related costs as excluded.  Check your policy carefully or have your Reproductive Lawyer review the policy if they have experience with health insurance.  As for the delivery, if you have insurance (your gestational carrier/surrogate is entirely another topic of discussion) that permits maternity related expenses, you will likely be covered; however, it is always best to look at the EOC.  The egg donation aspect to your pregnancy is irrelevant to the insurance coverage itself, only the coverage itself is important for maternity expenses, as well as the ability to add dependents.

 

Why do I (we) need a lawyer for egg donation?  Why can’t we just use the consents from our doctor’s office?

 

Egg donation is more than signing an informed consent for a procedure that is to be performed at your doctor’s office.  Remember, informed consents are in place to protect the doctor, not you directly.  Now, with an egg donation agreement prepared by an experienced Reproductive Lawyer, you can insure that the Donor is doing this voluntarily, understands the medical risks and procedures, and that all issues regarding such items as the disposition of remaining embryos, donor complications, future medical issues, etc. are addressed fully and completely.  Most importantly, it will insure that all expectations of both parties are clearly explained and understood so that any issue that develops can be dealt with quickly and efficiently.  With egg donation only, an egg donation contract will be all that is required, besides the informed consents at the physician’s office in order to be legally protected in your donation.

 

Can the egg donor come and take away my baby if she changes her mind?  What if she cannot have children herself later in life?  What if we did not have a legal contract in place?

 

In one word, no.  Of course, as an attorney, I can tell you that there are some likely scenarios that may throw this premise out the window; however, in the UCI (University of Irvine) egg theft scandal, women whose eggs were stolen were unable to obtain any custody and/or visitation of those children.  Again, I would speak with a Reproductive Lawyer to ensure that you are protected against any unfortunate situations. 

Even if your donor is unable to have her own children later in life, whether egg donation related or not, she will lose any claim due to her donation.

As for not having a contract, if you like to sky dive without a reserve chute, go ahead.  However, as with the UCI scandal discussed above, a contract will give the egg donor rights to your child, but it will protect you from liability, etc. if drafted by an experienced Reproductive Lawyer

 

Are egg donation contracts legal in all states? 

 

The answer is likely yes; however, this is a complicated question that requires you to speak with a Reproductive Lawyer regarding your specific situation. 

 

What issues are addressed in the legal contract?

 

The responsibilities of both the egg donor and the Intended/Recipient Parent(s). 

On the responsibility side of the Intended/Recipient Parent(s), some of the issues that are addressed are as follows: embryo/egg disposition, payment for donor for pain and suffering and travel (if any), anonymity or future contact for medical issues, insurance for any donor medical complications, etc.

On the responsibility side of the egg donor, some of the issues that are addressed are as follows: her availability, her duties regarding medical appointments and the administration of medications, her declaration that all medical information that she has provided is true and correct to the best of her ability, what happens if she fails to do as required (breach of contract), etc.

 

What happens if my donor cancels the cycle? What if my donor does not take her medications properly? 

 

Well, first of all, it is always possible that she just needs to reschedule they cycle.  As for the medications, if she informs the doctor right away, the cycle can potentially be saved by a change in protocol.  However, if she does cancel before or after the commencement of medications or ruins the cycle due to her own failure to follow protocol, your donor agreement will specifically address how this is to be handled.  If you used an egg donor agency, make certain that your Retainer with them also addresses how they will handle this situation and if they will provide you with a new donor and/or a partial/full refund. 

 

What if the donor does not pass her medical, psychological or genetic evaluations?

 

If your donor does not pass any one of these evaluations, it is prudent not to use her as your egg donor.  A breach will attach to your situation if she failed to inform you or the agency or fraudulently provided information in the very beginning, which would have kept her from being selected as an egg donor in the first place.  Remember, egg donation is a lucrative practice for many young women, so do not be naïve enough to think that some women will not lie or manufacture information.  That is why verification of all information from a donor is imperative. 

As for locating a new donor, again, look to your agency retainer as listed above.   It also never hurts to retain your Reproductive Lawyer to also review your agency retainer.

 

Will I (we) have the opportunity to meet the egg donor?  Is it mandatory for me to meet the egg donor?

 

The opportunity will depend upon whether your egg donor wants to meet you and whether your clinic/agency permits it.  Make certain that you select a donor/agency/clinic that permits this if this is important to you.

 

Well, it is never mandatory to meet your egg donor; however, whether you do that or not is a very personal question to each person(s).  Statistically, in my decade of experience, I only see clients meeting their donor 1 out of every 100 times – literally, whether for a short hello or a longer lunch type meeting.

 

How can I be sure that my identity remains confidential?

Well, in the world of Google search, it is always best to provide the egg donor very limited information.  Be generic if she asks professions or where you live.  Also, use pseudonyms (John and Mary) if you are recognizable or active in a certain area of your life that can easily be searched, such as on facebook.  In addition, if the egg donor (or agency) wants to know when any baby is born, limit that information to month and year only – no actual day of the month. 

As for the egg donor, her privacy and anonymity is much harder to keep as you likely have her date of birth, first name, name of school, favorite hobbies, etc.

 

What if I need to contact my egg donor in the future if my child has a medical problem?

 

First of all, this absolutely needs to be addressed in your egg donation contract so you can be certain that you have this available. Secondly, since we are still several years away from any donor registries, it is imperative that you have her information stored by someone for the future.  In addition, her information on her egg donor profile may also be handy in the future, but I would never recommend contacting her yourself – use a third party to facilitate this contact.  You do not want to scare away the genetic connection to your child if needed.

 

 

 

If you have questions about California surrogacy laws or if you would like to speak with an egg donation attorney, please contact our law firm to set up a consultation.