Vorzimer, Masserman and Chapman, Egg Donation and the Law

EGG DONATION AND THE LAW
Legal Issues to Consider When Utilizing Egg Donation

I. Egg Donation Overview

The explosion in the use of donor eggs as a viable method of assisted reproduction occurred in 1983, when the first woman with ovarian failure delivered a child conceived from a donated oocyte. Since 1983, the use of donor eggs and the number of egg donation programs has dramatically increased. Recent medical advances have provided infertile couples a previously unavailable opportunity to have a child genetically related. Moreover, couples also have the option, in some cases, to contribute to the gestational development of their own child.

Egg donation remains a relatively new reproductive procedure, involving the removal of one or more eggs from a donor and the transfer of those eggs to either the intended mother or a surrogate. Developments in the field of egg donation have offered to over 100,000 women in the United States, otherwise unable to produce healthy eggs due to premature ovarian failure, anatomically inaccessible ovaries, abnormal eggs, or lack of ovarian function due to radiation, chemotherapy, or surgery, the opportunity to have a child who has a genetic relationship to her spouse.

Of paramount concern to any couple and/or individual considering participation in an egg donation program is the ready access to physicians, mental health professionals and lawyers. It is imperative that these professionals recognize the need for appropriate counseling at all stages of diagnosis and treatment for infertility, in order to ensure that the parties involved in a reproductive arrangement have an opportunity to properly evaluate the risks involved in required medical procedures, as well as the legal ramifications of entering into a written third party reproduction agreement (i.e., consent must be knowledgeable and voluntary). Where a third-party Egg Donor relationship is created, the legal rights as well as the mental and physical well-being of the donor must be carefully considered and valid consent obtained (including consultation with independent legal counsel) prior to the commencement of any infertility treatment.

II. Egg Donation & Parental Rights

Arguably, the single most important legal document ever to be executed by a couple or individual who desires to have children is the Egg Donor and Surrogacy Contract. A properly drafted Egg Donation Contract will prominently and exhaustively address the relinquishment of parental rights by the egg donor and her spouse and/or the surrogate and her spouse. It bears noting that those rare court decisions, in which issues of third party reproduction have been addressed, have yet to enforce the terms of the contract. Rather, the courts have turned to the reproductive contract to determine the intent of the parties.

Critical to any Egg Donor Agreement is the relinquishment of parental rights by the Egg Donor and her spouse. The agreement must be drafted to ensure that all parties understand and agree that any child born pursuant to the Agreement is, in all respects, considered the child of the Intended Parents. Where more than two women can claim maternity, the intent of the parties at the time of the agreement will, under the current state of California law, be the determinative factor in deciding the legal maternal status of the Intended Mother.

In the most recent and extraordinary surrogacy case to date, a California Appellate Court was faced with the challenge of balancing the parental rights and interests of six different parties to a surrogacy contract. In Jaycee B. v. Superior Court, 42 Cal. App. 4th 718 (1996) ("Jaycee B."), a husband and wife (the "Intended Parents") executed a surrogacy contract in Orange County, California with a woman (the "gestational surrogate") and the Surrogate's husband involving the fertilization of an egg from an anonymous egg donor, with the sperm of an anonymous sperm donor.

One month before the expected birth of the child, the Intended Parents separated and petitioned for divorce. The child was born and the hospital released the child to the Intended Mother based upon the reproductive contract. The Intended Mother then sought child support payments from the Intended Father. The Intended Father convinced the trial court that support payments could not be ordered because the court had not established that the baby was the "child of the marriage" pursuant to California Family Code Section 2010. The Appellate Court disagreed and found that it was enough that the Intended Mother had made a sufficient showing that the Intended Father would be declared the child's legal father by a court at some future date and therefore ordered the family law court to determine an appropriate child support order (expected Spring, 1997).

The Appellate Court in Jaycee B. relied upon the reasoning of Johnson v. Calvert, 5 Cal. App. 4th 84 (1993), the California Supreme Court case that was the first to uphold the legality of a gestational surrogacy contract. The Johnson court ruled that, under the California Uniform Parentage Act, both the intended mother and the birth (gestational) mother could establish parentage. The intended father was also rendered as a potential parent, simply by entering into the surrogacy agreement. The Court explained, "John admits he signed the surrogacy agreement, which for all practical purposes caused Jaycee's conception every bit as much as if he had caused her birth the old fashioned way."

A genetic mother and father of a child generally retain parental rights in relation to the child. Opponents to assisted procreation contracts claim that a donor and surrogate's right to reproductive freedom and privacy are so basic that she cannot be compelled, even by a contractual arrangement, to relinquish her rights prior to or upon the birth of a child. Scholars claim that parental rights are so fundamental that the cannot be "waived" by signing an egg donor or surrogacy agreement. Although it is generally understood that an egg donor or surrogate enters into a contract "freely," some assert that it is unreasonable to suggest that a woman could give an advance waiver of rights to make choices concerning a baby that will be born in the future. It is argued that parental rights are not created when the contract is entered into, but rather that such rights are created upon the birth of the child.

Courts have been reluctant to rely upon Constitutional arguments in deciding third party reproduction cases. For instance, the California Supreme Court in Johnson v. Calvert rejected Constitutional challenges raised by a surrogate mother who was not genetically linked to the child, and refused to find that the surrogate possessed parental rights. The Court stated, "A woman who enters into a gestational surrogacy agreement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own."

While Constitutional principles have yet to dominate the legal landscape relative to assisted reproduction, compelling equal protection arguments nevertheless exist, which could compel judges to treat egg donors similar to sperm donors, (See section II- A below). Anything short of this would arguably violate a woman's right of equal protection under the law.

A carefully drafted Egg Donor Agreement will specify the Egg Donor's intent not to establish any form of a parent-child relationship with a child born pursuant to the Agreement, as well as release the Egg Donor from any and all responsibilities regarding the rearing and caring for the child. Any other result, as the court pointed out in Johnson v. Calvert, would unduly "burden her with responsibilities' she never contemplated and is directly contrary to her expectations." The Jaycee court also refused to "reach a result contrary to her and all the parties' expressed intentions." Thus, the contract should specifically address the relinquishment and/or waiver of parental rights by the egg donor and her husband.

A. Sperm Donor Act Analogy

While sperm donation has been a common infertility practice for many years, egg donation has only emerged since 1983. In light of the recent rise in the use of egg donors, few, if any, states have adopted laws with respect to the rights and liabilities of egg donors and those that use donated eggs. Moreover, given the lack of any legislation in this area, courts are reluctant to take the first step into this foray.

Currently, the most effective argument available to address the relinquishment of parental rights by an Egg Donor is to analogize the egg donor to a semen donor. According to the Sperm Donor Act, adopted in many states, the donor of semen provided to a licensed physician for use in the artificial insemination of a woman other than the donor's wife is treated in law as if he were not the father of the child. Thus, the genetic father bears no financial, legal or social responsibility for a child born as a result of the donation. Moreover, where donor sperm is utilized, the intended parents need not take any legal steps to finalize the paternity of the child. Rather, the intended father is considered to be the legal father. Consequently, any argument that an intended mother utilizing donor eggs must obtain either a judgment of maternity, or pursue a step-parent adoption, may run afoul of our equal protection laws.

Perhaps the closest a court has come to upholding the sperm donor analogy occurred recently when the California Appellate Court persuasively stated, "We are hard-pressed to think of any reason a woman in an analogous situation [to a sperm donor] should be treated differently" (Jaycee B.). The court also charged the legislature to enact guidance for courts grappling with these issues. Unfortunately, this discussion by the Appellate Court in the Jaycee decision has no binding effect on other courts.

While some issues in egg donation mirror those in sperm donation, the difference lies in the ability to split the biological role. Egg donation enable the separation of genetic, gestational and social roles of motherhood, and challenges the common law presumption that the birth mother is the legal mother. Most state statutes favor the presumption that the gestational mother is the legal mother.

In pregnancies involving an Egg Donor, the recognition of the genetic mother as the legal mother would be inconsistent with the public policy underlying sperm donation legislation. Under current sperm donation statutes, the man married to the biological, intended mother is deemed the legal father in order to promote the public policy goal of ensuring a stable family unit for the child. The same interest exists in familial arrangements facilitated by egg donation. Thus, legislatures need to enact statutes that recognize the legal mother as the woman married to the biological, intended father, even where she is not the gestational mother.

III. Specific Egg Donor Consent Issues

It is critical that all parties involved in an Egg Donor Agreement be able to properly evaluate their own chances for success and make reasoned decisions regarding initiating any form of infertility. Many of the technologies associated with infertility treatments are of recent origin and, in some situations, remain experimental. Thus, doctors and lawyers have a formidable task in ensuring that an egg donor and her spouse have sufficient information to appreciate the ramifications of initiating treatment.

Due to the serious nature of the rights and interests at stake in surrogacy agreements, it is critical that all disclosures be obtained in writing, even if doctors, lawyers or counselors believe that the proper consent has been obtained verbally through consultations with the patient. It is possible that an Egg Donor may experience undue pressure or manipulation from a couple who is particularly nervous or emotionally charged by a surrogacy arrangement. Because emotions are so high among the parties to a surrogacy contract, independent legal representation for all parties to the agreement is essential to ensure that the ramifications of entering into the surrogacy agreement are carefully analyzed by each individual.

A. Memorializing Parental Rights and Financial Obligations

The consent agreement should be reasonably detailed so as to reflect the intentions of the parties at the time the contract is executed, as well as address the short-term and long-term risks inherent with the egg donation process. For the egg donor, obtaining proper consent includes properly memorializing the egg donor's intent to relinquish her parental rights with the child, as well as an agreement not to interfere with the parent/child relationship established by the Intended Parents.

The Intended Parents similarly memorialize their intent to assume parental rights of the child, including full financial support. Because the payment of fees and medical expenses are involved, it is critical that the costs are clearly defined in the Egg Donor Agreement. Payment for medical insurance and legal fees are also generally assumed by the Intended Parents. If extraordinary expenses arise, the contract should be amended in writing to reflect the payment of additional expenses or fees. This agreement should be confined to a finite period of time surrounding the pregnancy.

B. Medical Screening

All parties to an Egg Donor Agreement are counseled by medical professionals regarding the risks associated with medical procedures and drug therapy. In addition to the usual risks of pregnancy and childbirth, an Egg Donor may have to undergo hormonal stimulation, medical intervention for egg retrieval and embryo insertion. Diagnostic tests, such as ultrasound examinations, are also required for the timely retrieval of the eggs. The parties must be informed of potential complications and side effects of all medical procedures prior to initiating treatment. In order to obtain proper consent, the parties to an Egg Donor Agreement are required to complete a detailed medical history questionnaire and undergo a physical examination by a physician. A complete medical screening for sexually transmitted diseases (including HIV) lowers the risk of infection, and genetic screening minimizes the transmission of known genetic disorders. The Intended Parents generally bear complete financial responsibility for all monetary aspects of the infertility procedure, as well as any resulting complications.

C. Psychological Screening

There are a variety of psychological risks faced by individuals who participate in egg donation agreements. During the course of the egg donor screening process, egg donors are routinely required to fill out a complete psychological history, including requests for specific information regarding past and current drug and alcohol intake, and the use of antidepressants. Couples should be aware that there is no specific remedy for patients or couples injured by their reliance on medical history forms. It is therefore critical that professionals involved in examining, screening or counseling parties to an egg donor arrangement take the time to clarify the explicit roles and responsibilities of all parties affiliated with an infertility procedure, and assure that this arrangement is clearly defined in the Egg Donor Agreement.

D. Ownership & Use of Excess Eggs

One of the most important long-term considerations faced by egg donors is the possibility of the death of one or both of the Intended Parents after the eggs are donated. Egg donors should also consider that a marriage could dissolve during the process of infertility treatment and the eggs could become the subject of a dissolution agreement. Evaluating these future risks is especially difficult, and egg donors surely intend to deliver eggs to an infertile, but otherwise happy and loving couple, not a couple fighting over parental rights.

Advances in medical science may further complicate egg donor agreements. Cryopreservation, or the freezing of eggs, dramatically increases the period of time that the eggs could be viably used for treatment. Multiple eggs are generally retrieved during the egg donation process. The surplus of eggs is often cryopreserved in the event that repeated cycles of treatment are required to achieve a pregnancy. This extended period of viability increases the possibility of separation, death or divorce of one of the members of the Intended Couple. Thus, the Egg Donor Agreement should specify a discrete period of time during which the contract is valid, as well as address the proper use of excess eggs and their disposal.

IV. Conclusion

This article has attempted to provide some guidance regarding the important issues that egg donors and Intended Parents should consider prior to entering into an egg donor agreement. It is in no way meant to replace representation by and consultation with medical professionals, counselors or lawyers facilitating an egg donor agreement. The serious nature of the legal rights at stake in an egg donor agreement necessitates careful research and consideration prior to initiating any infertility treatment. A carefully drafted, reasonably detailed consent agreement should outline the critical issues involved in the egg donation process, and delineate the rights and responsibilities of all parties to the agreement. It is through this process that the parties subject to the contract have confidence that a child born through an egg donation program is free from legal conflict and enjoys a nurturing parent-child relationship with the Intended Parents.