The “traditional” American family is changing, and assisted reproduction techniques are advancing. One option for an infertile couple is to seek the assistance of an egg donor. Egg donation is the process by which a woman donates her eggs to a recipient couple who wishes to have a child. The donor’s eggs are then fertilized through the in vitro fertilization process, and implanted into the recipient mother.
Currently, no law exists in Illinois that governs egg donation. However, egg donors and recipients commonly hire attorneys to represent each of them in drafting an Egg Donor Contract or Egg Donor Agreement for several reasons. One important reason to hire an attorney is that Illinois law imposes an obligation to pay child support upon the biological parents of a child. Since an egg donor is the biological mother of the resulting child, a written agreement is essential in order to ensure that this is a one-time transaction to donate eggs, and not a lifelong commitment. Many doctors actually require a written agreement before beginning the egg donation process. Egg donors may choose to remain anonymous as well.
Because there is no egg donor legislation in Illinois, the Egg Donor Agreement governs the rights of each party involved in the egg donation process. There are important provisions that should be implemented into the Egg Donor Agreement in order to protect the participants in the agreement. The following provisions and details should be specified in the Egg Donor Agreement:
- How many times has the donor agreed to donate?
- What will happen to the frozen eggs? Will they continue to be frozen or will they be disposed of?
- What happens to the frozen embryos? Will they stay frozen for further use or will they be disposed of?
- Who do the frozen eggs/embryos belong to? The donor or the recipient?
- If the frozen eggs/embryos belong exclusively to the recipient, can she use them at any other time she desires in the future?
- Which party will be responsible for the costs of storage, freezing, and cryopreservation of the eggs/embryos?
- Are the recipients going to cover 100% of the donor’s medical costs, including testing, procedure, medication, medical pre-screening and fertility testing?
- Are the recipients going to be 100% responsible for the donor’s attorney’s fees and costs?
- Specify that the donor is only providing eggs for the purpose of fertilization and implantation and will not request or compel any guardianship, allocation of parental responsibility, custody, or parenting time rights with any child that may result from the egg donation procedure.
- Specify that the recipients will not go after the donor for financial support for any child that results from the egg donation.
- Specify that the donor shall not be named as the child’s mother on the birth certificate;
- Specify that the donor has relinquished all rights to bring a suit to establish paternity of any of the child conceived through egg donation.
- If the recipient knows the identity of the egg donor, do they wish to not reveal the egg donor’s identity to anyone? Can the recipient disclose the donor’s identity with express written consent?
- Will the recipient disclose to the child(ren) that the donor is the biological parent of the child(ren)? If so, at what age is it appropriate to do so?
- Can the donor have any future contact with a child conceived through egg donation?
- Indicate that the donor’s relinquishment of rights is final and irrevocable.
- If there is a disagreement between the donor and recipient, will they engage in mediation? Binding mediation? Arbitration?
- Indicate that there may be issues that arise from the Egg Donor Agreement that have not been settled by statute or prior court decision. As such, the parties choose to enter into the Egg Donor Agreement as binding.
- Indicate that each party has signed the Egg Donor Agreement freely and voluntarily and without duress of any kind.
- Indicate if the parties have been represented by attorneys.
- Indicate that any oral modification to the Egg Donor Agreement is invalid.
- Indicate that the attorneys have reviewed the Agreement and provided legal advice, however, the attorneys have no knowledge of any promises made between the donor and the recipient outside of the Egg Donor Agreement.
- Indicate that the attorneys have not given advice or discussed potential health risks associated with the egg donation process.
It is important that you have an attorney draft and/or review any Egg Donor Agreement that you may enter into. Please contact our office to set up a free consultation if you have questions regarding egg donation.