Assisted Reproductive Technology (ART) includes surrogacy as well as sperm and egg donation. When utilizing such processes, Intended Parents (IPs) must navigate the tricky waters of donor agreements. As the law and procedures are constantly changing, donor agreements force both Intended Parents and donors alike to address what are oftentimes unsettled familial obligations and inheritance rights, as well as issues of custody, visitation and support prior to utilizing ART.
In addition to private agreements, many clinics will require Intended Parents to sign forms directing what will happen in the event of death or divorce. Intended Parents should also concurrently update their Will and other estate planning documents to coordinate with the agreements signed with the clinic and possibly the donor. This is because in the event of conflict between documents, the clinic agreements will likely prevail.
With respect to custody, it is most common to include a Termination of Rights clause in any surrogate/donor agreement. The sister term is the Assumption of Rights clause. Together, these terms exemplify the intent of the agreement; the Surrogate or Donor shall have no custodial rights or responsibilities and the Intended Parents shall assume custody through parentage or adoption proceedings.
Likewise, it is also important, specifically with surrogacy agreements, to address penalties for breaking the agreed-upon terms of the contract. For example, in the instance a Surrogate refuses to cooperate with amniocentesis testing, selective reduction, to terminate a pregnancy, or in some locales, to refuse to grant custody to the Intended Parents following the birth of the child, a common assurance for Intended Parents is to include a clause wherein the Intended Parents should not be responsible for the financial support of that child. Thus, it is necessary to specify that under such circumstances, the Surrogate would remain liable for the financial support of the child and shall indemnify and reimburse the Intended Parent for prior fees and costs.
In the instance a sperm or egg donor is a friend of the Intended Parents, it becomes important to specify that the use of the donation is restricted to the named donee.
Additionally, when an Intended Father and an Intended Mother are preparing to utilize In Vitro Fertilization (IVF), it is crucial to address the issues of possession and storage of their genetic material and/or the genetic material of the donor. For example, what to do with the eggs or sperm in case one or both parties die prior to fertilization or even implantation? Denoting under what circumstances the material should continue to be stored, destroyed, donated or used for research prevents posthumous legal battles with ones’ estate.
These are just a few examples of why it is so important to draft and execute an agreement between all parties involved prior to utilizing ART. Not only do they offer an opportunity for the parties involved to consider all possibilities, but they also afford the parties the ability to record their intent. With the guidance of counsel, a tailored agreement allows Intended Parents and Donors to know they are on the right path and feel secure in their decision-making process.