A Letter of Legal Clearance? What is it? Do I Need One?

A Letter of Legal Clearance? What is it? Do I Need One?

In most egg donations and in many embryo donations (anonymous or known), the donors and the recipients meet with reproductive law attorneys (each retains separate counsel, the recipients pay both attorneys’ fees) to discuss obligations, expectations, entitlements and restrictions that either party may intend to impose on the other. Typically, the recipients’ attorney will then draft what is generally known as an Egg Donation Agreement or an Embryo Donation Agreement (depending on the type of donation). A skilled reproductive law attorney will produce a document, generally 20-30 pages in length that captures, amongst other things, the respective intentions of the donor and the recipients. (I have done much writing and speaking on how imperative it is, in order to protect the donor’s rights as well as to best preserve parentage on the part of the non-genetic recipient, that direct contracts between donors and recipients be mandated by clinics and/or be insisted upon by patients….more info on why contracts are necessary can be found in other blogs under my Legal Issues tab.)

For those clinics that wisely require direct agreements, most will want to be notified that the contract has been signed before the clinic will allow the cycle to start. There is some debate as to whether or not the clinic (or anyone else) is entitled to receive a copy of the agreement. At my office, because we feel these documents contain private and confidential information, we generally withhold the contract and, instead, issue to the clinic (and the matching agency, if one was used) a Letter of Legal Clearance. Even those attorneys who do feel comfortable sharing a copy of the contract will also send a Letter of Legal Clearance summarizing for the clinic certain terms of the agreement. Clinics will file the Letter of Legal Clearance with the recipients’ cycle records so that, should any action related to the cycle come up in the future (recipients want/need to contact the donor, the child wants to meet the donor, the recipients have excess or residual embryos they now want to donate or dispose of), the clinic is clear as to what was agreed to and they can proceed accordingly. (I’d like to say that I often consider whispering in the ear of certain clinics that direct contracts and Letters of Legal Clearance minimize their exposure to liability….frankly, I’d rather scream it, but, separate blog, separate matter.)

Typically my Letter of Legal Clearance informs the clinic of the following:

1. If the recipients have agreed (or not) that cycle results (number of eggs, embryos and pregnancy outcome) can be shared with the donor;
2. If the donor has agreed (or not) to be reached, through an intermediary, if the child suffers a medical crisis;
3. If the donor has agreed (or not) to be reached, through an intermediary, if the parents or the child should want to contact or meet the donor;
4. If the recipients can dispose of excess cryopreserved embryos by directing the clinic to thaw or otherwise destroy the embryos;
5. If the recipients can dispose of excess cryopreserved embryos through donation for scientific research; and
6. If the recipients can dispose of the excess embryos by donating them to another recipient for family building.

There are many other matters that can be addressed in a Letter of Legal Clearance (as there are many other matters addressed in the Egg or Embryo Donation Agreement including and most importantly, the donor’s relinquishment of parental rights) but the above generally shows how the attorney can inform the clinic of the intentions/expectations of both parties so that the clinic can accommodate any future request consistent with what the parties agreed to at the time of the donation. A Letter of Legal Clearance is a good idea for all who are involved in assisted family building and one that should be strongly considered by those clinics that do not presently require direct agreements. Recipients and donors should also consider the Letter of Legal Clearance as a must-have in order to be best protected throughout the donation process and for many years to follow.

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