LEGAL INFORMATION

Over one million babies have been born due to assisted reproductive technologies ("ART") in the United States, Canada, Europe, and in some countries in Central and South America. Please continue reading below.

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Because ART is so successful and has become a common way to create a family, Intended Parents (“Recipients”) can find themselves exposed to all kinds of legal, ethical, and even religious issues surrounding assisted reproductive technologies. Every country has a different opinion and approach to ART. Recipient parents need to become familiar with the laws that govern the medical procedures of that country or state.

If you are planning to become a parent through egg donation or embryo donation, it is easy to become burdened and overwhelmed by the legal paperwork and "legal speak" you will be required to wade through. Additionally, the contracting process itself can be lengthy and complex depending upon the type of contract your specific cycle requires. Because having a child is the most important thing you will do in your life, we at PVED feel strongly that every Recipient parent, regardless of circumstance, obtain some sort of legal counsel, preferably an experienced reproductive attorney you can trust to know and protect your parental rights.

Please find below some of the most common questions asked by recipient parents all over the world.

LEGAL FAQ - EGG DONATION

1. As an Intended/Recipient Mother, do I have to adopt the child that I carry myself?
No. You are the legal mother, as you are the woman giving birth to the child. This holds true in all instances; for example, in the case of divorce, being the mother to a donor egg child can NOT be held against you in a custody hearing.

2. As an Intended/Recipient Mother, single Intended/Recipient Father or Gay Male Couple do I have to adopt the child that my gestational carrier/surrogate carries?
This depends upon where your gestational carrier/surrogate gives birth. Some states require that both or at least one parent is biologically related to the child in order to circumvent the adoption process legally. The best advice in this situation is to contact a reproductive lawyer who can set you on the right path.

3. If I use a foreign egg donor, will the baby be a U.S. citizen?
The child will take your citizenship status, as you are the legal parent(s).

4. Will my child created via egg donation be a dependent on my taxes? What about for insurance?
Yes, since you are the legal parent, the child can be claimed as a dependent on your taxes. The same applies regarding your insurance; however, make certain your policy allows you to add dependents before you become pregnant.

5. Does my insurance have to pay for the Donor Egg (DE)/IVF procedure? How about the delivery?
No, your insurance does not have to pay for the procedure. Your Evidence of Coverage (EOC) may list the procedure and all donor-related costs as excluded. Coverage varies from policy to policy, however, as well as from state to state (due to differences in state mandates of infertility coverage). Check your policy carefully or have your reproductive lawyer review the policy if he or she has experience with health insurance. As for the delivery, if you have insurance that permits maternity-related expenses, you will likely be covered; however, it is always best to look at the EOC. If you are carrying the pregnancy, the fact of egg donation is irrelevant when it comes to maternity expenses and adding dependents. In other words, once you become pregnant, as long as you have maternity coverage, it is irrelevant how you got pregnant. Note: Your maternity/delivery coverage may not apply to your gestational surrogate/carrier.

6. Do I (we) need a lawyer for egg donation? Why can’t we just use the consents from our doctor’s office?
You may want to hire an attorney to review paperwork and/or create contracts surrounding your egg donation cycle, especially if you are working with an independent egg donor agency not affiliated with your clinic, a known donor, a gestational surrogate/carrier, or donated embryos. In addition, it’s good to keep in mind that informed consents are in place to protect your doctor, not you directly. A reproductive lawyer can help to ensure that the donor is donating voluntarily and understands the medical procedures and risks, and that issues such as the disposition of remaining embryos, donor complications, future medical issues, etc. are addressed fully and completely. Most importantly, a lawyer can help to ensure that all expectations of both parties are clearly explained so that any issue that may arise can be dealt with quickly and efficiently. In an egg donation-only cycle, an egg donation contract will be all that is necessary outside of your physician’s informed consents in order to be legally protected. Finally, make sure that your donor is represented by an independent attorney to remove any inference of conflict of interest or undue influence during the legal phase of the donation.

7. Can the egg donor come and take away my baby if she changes her mind? What if she cannot have children herself later in life? What if we did not have a legal contract in place?
No; at this point, there is absolutely no precedent for granting any rights whatsoever to an egg donor, despite whatever situation might arise in her own life later on. Even if your donor is unable to have her own children, whether egg donation-related or not, she will lose any claim to her donation. However, if you are concerned about this possibility, the best course of action would be to consult with a reproductive lawyer to ensure that you are protected. A legal contract will not grant rights to a donor, but may protect you from liability and other issues.

8. Are egg donation contracts legal in all states?
The answer is likely yes; however, this is a complicated question that requires you to speak with a reproductive lawyer regarding your specific situation.

9. What issues are addressed in the legal contract?
A legal contract will address the responsibilities of both the Intended/Recipient Parent(s) and the egg donor.

Typically outlined in the responsibilities of Intended/Recipient Parent(s) are the following: embryo/egg disposition, payment for donor for pain and suffering and travel (if any), anonymity or future contact for medical issues, insurance for any donor medical complications, etc.

Typically outlined in the responsibilities of the egg donor are the following: availability, duties regarding medical appointments and the administration of medications, declaration that all medical information that she has provided is true and correct to the best of her ability, an outline of what happens if she fails to do as required (breach of contract), etc.

10. What happens if my donor cancels the cycle? What if my donor does not take her medications properly?
First of all, it is always possible that the donor simply needs to reschedule the cycle. As for medication errors, if the donor informs the doctor right away, the cycle can potentially be saved by a change in protocol. However, if she does cancel without rescheduling before or after the commencement of medications or ruins the cycle due to her own failure to follow protocol, your donor agreement will specifically address how this is to be handled. If you used an egg donor agency, make certain that your retainer with them also addresses how they will handle this situation and if they will provide you with a new donor and/or a partial/full refund.

11. What if the donor does not pass her medical, psychological or genetic evaluations?
If your donor does not pass any one of these evaluations, it is prudent not to use her as your egg donor. A breach will attach to your situation if she failed to inform you or the agency of important information on her history or fraudulently provided information in the very beginning, which would have kept her from being selected as an egg donor in the first place. Remember, egg donation is a lucrative practice for many young women, so do not be naïve enough to think that some women will not lie or manufacture information. That is why verification of all information from a donor is imperative. As for locating a new donor, again, look to your agency retainer as mentioned above. It also might be helpful to retain your reproductive lawyer to review your agency retainer.

12. Will I (we) have the opportunity to meet the egg donor? Is it mandatory for me to meet the egg donor?
The opportunity will depend upon whether your egg donor wants to meet you and whether your clinic/agency permits it. Make certain that you select a donor/agency/clinic that permits this if this is important to you. It is never mandatory to meet your egg donor; whether you do so or not is a very personal question. In my decade of experience as a reproductive lawyer, the statistical trend is that clients rarely meet their donors (I see it in approximately 1 out of every 100 cases). If they do meet, it is typically for a short “hello” or a lunch meeting.

13. How can I be sure that my identity remains confidential?
Due to the wide variety of information easily accessible on the Internet, it is always best to provide the egg donor with very limited information. Be generic if she asks professions or where you live. Also, use pseudonyms (John and Mary) if you are recognizable in a certain area of your life or are active on social/networking websites that can easily be searched, such as Facebook. In addition, if the egg donor (or agency) wants to know when your baby is born, limit that information to month and year only – no actual day of the month. As for the egg donor, her privacy and anonymity may be harder to protect as you likely have more information about her than she has about you. However, keep in mind that her right to privacy is as inherent as your own and should be respected. If you are concerned about verifying information she provides, review the way in which your clinic/agency performs their assessments of donors and/or speak with a reproductive lawyer.

14. What if I need to contact my egg donor in the future if my child has a medical problem?
If future contact with the donor regarding medical concerns is important to you, this must be addressed in your egg donation contract so you can be certain that you have this option available. In the absence of a donor registry, it is imperative that you have your donor’s information stored by someone for the future if you would like that information to be available later on. Always use a third party to facilitate contact with a donor; I recommend that you not try to contact her on your own.

WHAT TO CONSIDER WHEN RETAINING A REPRODUCTIVE ATTORNEY

Author: Melissa B. Brisman, Attorney

Is your attorney experienced?
Most prospective parents facing infertility and turning to assisted reproductive technologies do not know where to turn for legal advice. Because reproductive law is still in its infancy (no pun intended!) the number of attorneys working in this area is quite small. Prospective parents should research the qualifications of any attorney who will assist them on this path to parenthood. There are many sources on the internet, including web sites and message boards that can offer a wealth of information. You will be quick to realize that a family law practice differs substantially from a law firm which specializes in reproductive law. I think we can all agree that professional experience is crucial when deciding to retain the services of an attorney, but the personal experience of the attorney along with how comfortable you are with the attorney can also be an important factor. Because of the nature of the arrangements prospective parents are contemplating, it is important that they feel comfortable with the attorney they employ. If you are fortunate enough to find an attorney who not only has professional experience in this field, but someone you feel confident in and at ease with, you will find yourself with an attorney who has the expertise, background and qualifications, both professional and personal, to give you the most up to date information and advice you need while protecting your interests and understanding your particular situation in this unsettled area of the law.

Does the law firm offer any services other than "legal"? Does it ever end!!! The long list of things to do when you have started on the road to building a family through assisted reproductive technology seems to be infinite. How can I find a carrier and/or an egg or sperm donor? Who will coordinate all the “little things”? Who will manage the money needed to pay all of these people? What about insurance? It goes on and on. You may wish to consider the “one stop shopping” approach by choosing a law firm which offers all of these services, and more, under one roof. There are many reasons that this is to your advantage; for starters, it will cut your to do list to a manageable amount, not to mention the fact that the costs of the services can be substantially less than if you were to procure them individually.

What is the difference between flat fees versus an hourly rate? There is a variety of different ways attorneys charge for their services and it would serve prospective parents well to research legal fees prior to signing any retainer agreements with a law firm. While some attorneys work on a contingency basis, this is not appropriate for the area of reproductive law and you should steer clear of any attorney who would offer you such a payment option in the field of reproductive law. Most attorneys will charge an hourly rate. This means that you are billed a set amount for every hour (or part of an hour) that the attorney is working on you case. Since it is nearly impossible to foresee the amount of time an attorney may need to spend on your case (especially in such an unsettled area of the law), such an arrangement makes it virtually impossible to budget your legal fees. Given all the unforeseeable expenses prospective parents find out about along the way, wouldn’t it be nice to know, up front, what your legal fees will be, before you even start the legal process? There are some attorneys who will work on a flat fee basis. When retaining an attorney for a flat fee, you can take comfort in knowing your legal fee in advance. Of course there may be additional expenses, such as court filing fees; however, these are usually very minimal when compared to your legal fee.

Where is the attorney licensed to practice law? Another key factor to take into account when considering working with a reproductive attorney is the states in which the attorney is licensed to practice law. As you may have discovered when starting to try and find people and agencies to help you, they can come from all over the country. Since attorneys must be licensed by individual states, how can this work? It is a great advantage to have an attorney who is licensed in at least one (if not more) of the states in which the parties reside and/or the state in which any medical procedures are being performed. By hiring an attorney licensed in several different states you can be confident that the advice you are receiving from your attorney is applicable to the state(s) you are working in. Of course, it is an impossible task to find an attorney licensed in all fifty states; but it is important to find an attorney who is licensed in the state(s) where the actions you are contemplating will take place, i.e. where your clinic is located, where your baby will be born, where one of the parties reside, or where the IVF procedure will take place.

Does your attorney have a knowledgeable and experienced support staff? When you retain an attorney, you are not just hiring the attorney, but the whole law firm. One sign of a good attorney is a knowledgeable and confident staff who can assist you when the attorney may not be available or needed. An attorney with an experienced and qualified staff can make a world of difference as opposed to a “sole practitioner” with no office staff or an attorney with poorly trained or inexperienced personnel. Although the support staff will not be able to offer legal advice, they can ensure that all other aspects of your case are handled in a timely and professional manner. If possible, try to find out how long the employees have been working with the attorney, as a high turnover rate may indicate some problems in the office itself.

About the Author: Melissa B. Brisman practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified team of legal professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice located in Montvale, New Jersey offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. Melissa Brisman can be reached at info@reproductivelawyer.com and at www.reproductivelawyer.com.