By: Amy Demma –

Often, when contacted by a client considering egg donation, one of the first matters we address is cost. Prospective parents come to collaborative reproduction typically after a long traveled infertility journey. Sadly, since patients are all too often self-pay, by the time they get to my office, finances are running low. Most folks assume that the legal costs associated with family building through donor egg or donor embryo is a big-ticket item, in fact, at most firms the fees related to donor agreements and legal counsel around collaborative family building are quite reasonable.

Still, though, for some, the agency fees, the donor compensation in addition to the IVF as well as the medication costs may just be too prohibitive and this is where an alternative lower cost  family building with donated embryos becomes a consideration. (Couples that are dealing with both a female and male infertility issue also often consider donated embryos.) While embryos available for donation are not as readily available as donor egg, I encourage prospective parents that if costs (and/or time) are the barriers to family building, that with professional guidance, embryos can, in fact, be located.

How does one become informed about the issues related to donor embryo? In my office there is very little that I will do before first suggesting that my client also engage a mental health professional. Embryo donation and family building in this manner can be emotionally and psychologically challenging. Prospective parents have to become comfortable and accepting that they will be parenting a child or children to whom they are lacking a genetic connection. Also, typically donors of residual (excess) embryos have successfully built a family and therefore, the recipient must also be able to proceed knowing that their child will have full genetic siblings and may, depending on the intentions of the recipients regarding disclosure and/or the terms of the Embryo Donation Agreement, not have any contact or even knowledge of those siblings. These are tough issues, for sure. And these are issues that can and should be sorted out with a mental health professional who has experience in collaborative reproduction – but here’s the good news, these are issues that for many can be and typically are resolved. Clients who meet with a mental health professional about embryo donation are so much better prepared for alternative family formation.

With your team in place, the next step is identifying embryos eligible and available for donation – in the United States, there are several resources prospective parents (recipients) can access in order to connect with those wishing to donate remaining (or residual) embryos. Global IVF will be able to assist you with options for finding embryos, some clinics have donor embryos available, embryo banks should be contacted, on-line “matching” services and for some, faith based “embryo adoption” programs may be appropriate. Global IVF recommends that because there are very few states with embryo donation laws, parties anticipating an embryo donation cycle should consult with an attorney experienced in assisted family building and preferably an attorney licensed in that state where the recipients live. Global IVF  also suggest that  International IP’s consider having the embryo donation agreement written under the state law where the donors reside and should also consult with an immigration attorneys in their country regarding citizenship of a child or children resulting from the embryo donation.

Whether you are pursuing an anonymous embryo donation or one between parties who know each other or you were otherwise matched and might consider becoming known, embryo donation is a multi-step process. It is a long process with a lot of details and matters to attend to, matters that need to be addressed before the to-be-donated embryos even get to the clinic where the frozen embryo transfer is to take place.  I prefer to be engaged as soon as the donor and the recipients come together so that I can assist with the below steps and offer support and guidance:

1. Clinic Clearance

The first step is to determine at which clinic the prospective recipients will be able to do the frozen embryo transfer. The objective is to identify a clinic that offers donor embryos services and, more specifically, a clinic that will accept cryo’d embryos created at another facility? If applicable, recipients also need to determine if that clinic will accept donation of cryo’d embryos created with donor egg. Before any next steps, we first have to identify a clinic for the cycle.

2.    Medical Clearance

Is the recipient mom (or gestational carrier) cleared for frozen embryo transfer with donated embryos? If recipient mom is of advanced age (usually over the age of 45) she likely will have to seek clearance from her primary care physician  and/or other medical clearance that might include an EKG, a stress test, a mammogram or whatever else the clinic deems necessary in order for the recipient mom to be considered appropriate for a donor embryo cycle. If recipient mom is less than 45 and otherwise healthy, she may be presumed medically cleared. Still, both donors and recipients should confirm that the clinic intended to perform the embryo donation will accept the recipient mom as their patient. Depending on how current the recipient mom’s medical records are, getting medical clearance could take months.

3. Embryological Clearance

Has the clinic intended to perform the embryo donation reviewed the embryology report of the embryos being considered and do the embryos meet that clinic’s criteria for donation? Every clinic has their own criteria for clearing embryos for embryo donation. If there is a cost related to getting records from donor’s clinic to recipients, cost is usually picked up by the prospective recipients.

4.    Psychological Clearance

I don’t advise that the parties proceed to psych clearance until clinic, medical and embryological clearance is in place, especially if the parties are known or to become known. Essentially we first answer: is the donation feasible, before we have the parties (separately, if anonymous, perhaps together if known – depends on clinic policy) meet with a mental health professional. If after independent psych clearance is issued (yes, the recipients pay for the donors’ visit) then, if parties are known or intending to become known, the clinic may request a joint psych visit. Again, policies at each clinic vary regarding the process by which parties considering embryo donation (both donor and recipients) are psych cleared so the recipients should inquire with the clinic as to what will be required for that clearance. All costs related to obtaining psychological clearance are borne by the recipients, however, in my experience, if the donors are not local to the recipients’ clinic, they likely will be able to meet with a local mental health professional and can avoid travel.

5. Legal Clearance

While the above clearances are being attended to, the attorney representing the embryo donors should inquire as to whether or not the embryo donation involves embryos created with donor egg. If this is the case, the egg donation agreement (if there was one) will be reviewed to determine if the egg donor must first issue her consent for the embryo donation. Some IVF clinics as well as storage facilities may also require (regardless of what the egg donation agreement reads) that the egg donor be notified and issue consent for the embryo donation. Reaching the egg donor and obtaining her consent may take some time, be prepared for this and allow for a delay in the embryo donation as this and all other clearances are pending. Once we have all the clearances in place, the recipients’ attorney will begin to draft the embryo donation agreement. The recipients pay for both the donors’ attorney as well as their own legal counsel.

The attorney that drafts the Embryo Donation Agreement will issue to the IVF clinic a Letter of Legal Clearance and the donors can then proceed with having the embryos transported to the IVF clinic. Typically, it is at the moment of contract execution (when the parties sign the agreement) that the embryos become the “property” of the recipients, ownership transfers from the donors to the recipients under the terms of the agreement.

Once all of the above clearances are in place, once ownership has been transferred to the recipient parents, those recipients can then proceed with their family building effort, the embryo transfer can and will proceed in a manner that is legally, medically and ethically appropriate and the recipients are best poised for a successful outcome.

By: Amy Demma

Law offices of Amy Demma


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