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Houston Fertility Journal

    The Legal Considerations of Using a Third Party Sperm or Egg Donor

    October 7, 2016 / by Center of Reproductive Medicine   

    Center of Reproductive Medicine


    Depending on the condition of your health or sexual orientation, involving a third party sperm or egg donor in the process of conceiving a child may be the only option you have in order to make a family. Fortunately, there are many generous individuals who volunteer each day to help people in your situation. Working with a donor, however, can open you up to the possibility of encountering some complications.

    Some donor arrangements are anonymous and some are known individuals, such as family or friends. Each arrangement comes with it’s own set of considerations. Every couple should considers the pros and cons for each situation before deciding which route makes the most sense for them.

    Using a Known Donor

    Many couples are drawn to using a loved one as a third party sperm or egg donor because of a genetic connection or the safety in working with someone you trust. Since they understand and trust this person, they feel complications will be less likely to arise.

    Yet, there are instances where issues have come up later regarding custody and the role the donor wishes to play in the child’s life. Your relative and/or friend may have a change of heart somewhere down the line and want to have more influence and recognition. Perhaps because you trust this person and do not want to risk offending them, you decide not to draw up a contract defining exactly where custody of the child lies.

    Working with a relative or loved one can quickly become a sticky situation for you if anything unexpectedly changes for the other party. It’s always best to get legal consultation for any donation arrangement. They can give you the best information in terms of how to handle delicate situations such as these. They will also help you to define what you feel comfortable with based on what is best for your child’s future.

    Anonymous Donors

    When it comes to anonymous donors, some individuals are concerned about knowing nothing of their donor but you are able to vet a lot more than you realize. Egg donor clinics provide the donor’s ethnicity, medical history, family history, education, and even childhood photographs. Third party sperm and egg donors also undergo genetic screening, psychological screening, blood tests and fertility evaluation before being approved for donation.

    Both the intended parents and the donor should be informed of their rights in the agreement when going through the process of sperm and egg donation. In anonymous situations, donors typically sign over all rights in the initial paperwork with the donation clinic. It may happen that donors have learned their genetic material has been used to conceive and they wish to know the child, but because of the contracts that were drawn up in the donation process, they have absolutely no access to the knowledge of where the offspring currently or once resided.

    Things to Consider

    When addressing your contract be sure to consider:

    • The contract should be designed for you and your unique situation. Be sure you read everything you and your partner sign very carefully. For instance: same sex couples using IVF need to be sure they aren’t using medical consent forms designed for heterosexual couples as the family dynamic is different and could create legal issues later on down the road. It could also happen that a partner in a couple who is providing their eggs may mistakenly sign medical consent forms that are typically used for egg donors and therefore absolve all of their parental rights.
    • Consent forms drawn up at the clinic are not what you use to establish rights. These forms may not be directed toward your specific situation and simply pertain to the broader and typical parent. If the entirety of your situation is not included in your legal documents, parental rights could be compromised.
    • If your state permits at home insemination and you choose to take this route, be sure you have legal witnesses. Legal issues could arise if there is no witness to testify about the manner of conception. This way there is no proof you didn’t have sex with the donor, which could end up allowing the donor rights to the child.
    • Do not use a boilerplate donor agreement (or sample agreement) from the internet. There are many of these floating around and they do not define your unique situation which can create major issues as stated above.
    • Make sure both parties have separate legal representation as courts may take cases less seriously if the attorney who drew up the agreement provided representation to both sides.
    • Include the donor’s spouse in the process of defining legal rights (when applicable). This person may have an emotional stake in the situation and should agree to confidentiality and future contact agreements.

    This is an exciting time in your life. The laws regarding egg and sperm donation are constantly changing and are very different depending on which state you are in. Be sure your attorney keeps you informed and you know all the legal issues that often arise with assisted reproduction. If you don’t already have an attorney, your fertility center may be able to provide you with some referrals of specialists who have worked with other patients at the clinic. Remember, your advocates, whether they are doctors or legal support, are all here to prepare you to have the smoothest and most successful experience possible.

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    Topics: Sperm Donor, Egg Donor

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