Agency, Independent or Clinic Matching: Using a donor? You need an attorney (or two or possibly three)

By the time ART patients arrive at collaborative reproduction for family building the cast of parties involved in the process has grown to include physicians, nurses, clinical staff, lab professionals, mental health providers, the donor (or donors), perhaps agency representatives and to round it all off, attorneys who specializes in alternative family formation.

Reproductive Attorneys are legal professionals experienced in the area of clinically assisted family building. These highly-specialized attorneys can advise on donor selection but are typically brought in once a match between the recipient and the donor (or donors) has been confirmed. Primarily the role of the reproductive attorney is to draft and negotiate contracts between the parties (in embryo donation it is important that the “donor” actually be viewed as two parties: an egg donor and a sperm donor and that each of those folks have independent counsel) but the attorney may also be called upon to review other legal documents such as agency service contracts and clinic consents. Some attorneys will also oversee escrowed funds deposited by the recipients for the anticipated expenses of the cycle.

If you are anticipating family building with donor gametes (egg, sperm or embryo) going at it without legal counsel puts much at risk. Without a contract in place between the donor and recipient both parties are left vulnerable to parentage challenges, financial disputes and other possible conflicts around issues that can be addressed in a donor agreement. (Clinic consents should not be relied upon in place of independent contracts between the parties…remember, clinic consents were drafted on behalf of the clinic, they are documents of a different nature than an egg or embryo agreement). Rights, responsibilities and obligations owed and expected of each party to the other is detailed in the donor agreement and parentage, a particularly complex judicial matter will be explicitly addressed by clearly stating the intentions of the donor(s) to be recognized only as that, a donor and any other presumption or right of presumption of parentage will be explicitly and clearly relinquished. The recipient parents are acknowledged in the donor agreement as the legal parents.

Other matters that will also be negotiated and then documented by each party’s attorney may include matters of payment, breach, anonymity, future contact as well as control and disposition of excess embryos.

If prospective parents are applying for insurance coverage for clinical expenses, if coverage should be declined, reproductive attorneys may also be able to provide counsel and services related to appealing insurance denials.

It is a good idea to begin considering attorney selection at the time recipients have decided to pursue collaborative family building. Clinics and/or your agencies should be able to recommend attorneys. The American Fertility Association and RESOLVE: The National Infertility Association both have lists of reproductive attorneys available at their websites. The American Bar Association’s Assisted Reproductive Law Section has resources available, as well.


Originally prepared by Amy Demma, Esq for The Fertility Advocate.

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