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.

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.

PVED Legal Advisor – Amy Demma Esq.

PVED’s Legal Advisor Amy Demma Esq. has created a list of frequently asked questions asked by intended parents, and parents via egg donation/surrogacy throughout the United States, Canada, Europe, and in some countries in Central and South America. If after reviewing PVED’s Legal FAQ, if you should have any other questions please feel free to contact Amy Demma directly, or contact Via Contact Page with your questions.

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.

1. As an Intended/Recipient Mother, do I have to adopt the child that I carry myself?

This is such a common question, one that worries so many recipient mothers. If you are concerned about your legal status as a recipient mother of donor eggs, you shouldn’t be. While some reproductive law attorneys do still recommend an adoption process, most of my colleagues agree that your status as a mother is clearly established simply because of a “presumption of maternity”, meaning that, in most states, if you deliver the baby, you are presumed to be the legal mother and your name will be placed on the birth certificate. Also, if you decide to enter into a direct agreement with your donor (anonymous or known)…I cannot urge you enough to enter into this sort of contract!!!!….the donor will explicitly give up any parental rights she might otherwise have AND she will agree that you are the legal mother. Your donor will also agree, in your “Egg Donor Agreement”, that your name will be legally placed on the birth certificate and that you (and only you) will have legal standing as the mother. Does that make you feel better?

I hope so! Because your Egg Donor Agreement may contain confidential information that you do not wish to share with your clinic, instead of providing a copy of the Agreement your attorney will draft a “Letter of Legal Clearance” that will be issued to your clinic telling your physician that a contract has been signed with your donor and that (amongst other things) your donor has relinquished all parental rights to you. This “legal clearance” will become a part of your medical record.

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 is a more complicated question than the previous one because, obviously, you’re not delivering the baby. There just isn’t a “one size fits all” answer to this one, simply because so much is defined in surrogacy by state law. I’m sorry I cannot offer a more definitive answer (as I was able to in the above question), I promise you that I am not trying to be evasive, but the best advice I can offer is to retain counsel familiar with the laws in the state where your baby will be born. (Are you seeing a trend here? Delivery impacts status of parentage.)

3. If I use a foreign egg donor, will the baby be a U.S. citizen?

While it is pretty rare these days that hopeful parents travel outside of the United States for egg donation (I absolutely get it that the most compelling reason to travel abroad for your donor eggs is financial…please, please first explore lower-cost programs in the states or consider domestic frozen egg programs or possibly shared egg programs) regardless of where you acquire your donated eggs, however, if you are a citizen of the U.S. that is delivering your child in the U.S. that status will pass to your child. Unfortunately, there is a disturbing trend right now that U.S. citizens who deliver a child outside of the U.S. and use egg donation will have to prove that the donor was a citizen of the U.S. If this is a concern of yours, we highly recommend you seek legal advice prior to conception and delivery.

4. Will my child created via egg donation be a dependent on my taxes? What about for insurance? Any inheritance issues?

Ahh, the joys AND the practicalities of parenting via egg donation. What I tell clients is that the flip side of the donor giving up (relinquishing) all parental rights is that the recipient not only gains all the privileges of parenting but also accepts all of the financial obligations of being a parent. Yes, your child will be your legal dependent for tax and insurance purposes and yes, your child will stand to inherit from your estate, when the time comes. This is your child and with all of the fun comes the practical aspects of the parent-child relationship. As always, there is a caveat to this for those couples who are currently married as many states automatically impose parentage on the husband for any child conceive or born during the marriage. This can be an issue should the couple separate or divorce in the future as to who has legal ownership of the embryos.

5. Does my insurance have to pay for the Donor Egg (DE)/IVF procedure? How about the delivery?

Oh, in what perfect world does an insurance carrier HAVE TO provide coverage? I wish I could tell you that insurers are compelled to cover donor egg but this is simply not the case. Currently in the U.S. there are 13 states that have some level of legislated mandate (it’s the law!!!) requiring insurance companies to offer some degree of coverage for infertility treatment. Even in Massachusetts (the state with the most comprehensive insurance mandate) benefits for donor egg may not be offered. Whatever the opposite of the “one size fits all” answer is we’re at the other end of that spectrum. Not only is this a state specific question but it boils down even further to a policy-to-policy answer. Best advice I can offer is to know your policy and if you are overwhelmed with the mighty small print, find a reproductive lawyer who can advise as to whether or not you can expect some coverage for you donor egg cycle. NOTE: If you are fortunate enough to have coverage for IVF with donor eggs please know that only the medical portion of the cycle will be covered (lab fees for screenings, medications, bloods and ultrasounds for monitoring, the retrieval, etc….anything that would be billed by your clinic should be covered IF you have coverage) your donor’s compensation, attorneys’ fees etc. will typically not be covered.

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When it comes to delivering your baby, ain’t nobody’s business how he/she was conceived (from an insurance perspective). If you have maternity benefits and your pregnant, you’re covered! (If you have concerns about whether or not your policy offers maternity benefits, please, please clarify that before you cycle!!)

6. Do I (we) need a lawyer for egg donation? Why can’t we just use the consents from our doctor’s office?

Although at some clinics you may be able to proceed without having met with an attorney, more and more clinics are requiring that you and your donor each be represented by independent legal counsel….this is good! Truly the most compelling reason for you to hire an attorney is to protect, from a legal standpoint, the family you are trying so very hard to build…why risk it? Your attorney will draft a contract that will be comprehensive (most egg donor agreements are approximately 25 pages in length) and will explicitly and clearly state that the donor is agreeing (amongst other things) that despite her genetic connection to your child, she has no legal status in your family. Lots of other issues are addressed in a donor contract (that are not addresses in clinic consents) including how much you will pay the donor, when you will pay her, if you will pay her (what happens if she flakes or otherwise is not cooperative or compliant?) AND when/if and how you will contact the donor should you need or want to, in the future. None of these matters are addressed or not addressed adequately enough in clinic consents. Remember, a clinic consent is not a contract (legally and most certainly, please know this, clinic consents are not contracts) nor do they establish “privity of parties” meaning your donor promises you nothing in that consent. For those clinics that do advise that in-house consent forms are adequate to protect your parentage, my response is…really? Let’s think about this, the clinic consent forms were drafted by attorneys retained by and on behalf of your clinic. There is a lot of language in those consent forms that is, shall we say, CYA language…and we’re not talking about your behind being covered by these documents. Clinic consent forms are documents intended to relieve the clinic of risk and liability. That last line is not going to win me any brownie points with my medical colleagues but I speak only from the legal perspective, physicians practice medicine, your clinic offers you medical services…for the legal protection of your family, seek the advice of a reproductive lawyer and be sure your donor has access to her own counsel. And to the many wonderful medical professionals I have the pleasure of working with, I offer you this: As an legal professional, it would be incredibly inappropriate (and, in fact, illegal) for me to offer medical (or mental health) advice, would you please consider that your clinic is not the appropriate place for your patient to be getting legal advice?

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?

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8. Are egg donation contracts legal in all states?

In every egg donation agreement that I draft and in almost all of the contracts I review, there is language referring to this area of law as being unsettled. This is a fair statement to make but I also counsel clients (and donors) that the legality of egg donation agreements vary from state-to-state. Some states have egg donation statutes (laws), other states have case law, some states have both. Please consult with a reproductive lawyer to discuss the law in the state where you live, the state where the donor lives and the state where the cycle will happen. In many cases, you may have access to better law in a state other than where you live as long as your family building effort has a connection to that state.

9. What issues are addressed in the legal contract?

An Egg Donor Agreement, in its simplest reference, is a contract that indicates to anyone reviewing the donation arrangement, what the intentions of both the donor and the recipients were at the time of the donation. Most agreements are approximately 20/25 pages in length and while many issues are addressed, a well-written contract will state, clearly and repeatedly, amongst other things, that it is the expectation of both the donor and the recipient that no rights be retained by the donor to the eggs, the embryos and/or to the child or children resulting from the cycle. This matter seems to be of greatest concern for hopeful parents and so it is stated in the contract several times. Beyond the matter of parentage and the donor having no rights following the retrieval, the contract will address what the recipients can and cannot do with any left-over embryos. The terms of the donor’s compensation will be clearly defined including at what point in the cycle the parents become obligated to pay the donor (and under what circumstances you do not have to pay her). Future contact for medical reasons and simply if you want to be in touch is discussed and your expectation of privacy, confidentiality and long-term anonymity is detailed. The donor’s obligation to follow your doctor’s orders around the cycle schedule, managing the medications, abstaining from sexual activity, not engaging in risky behavior (drugs, alcohol or nicotine use) are addressed in the context of contract breach…if she doesn’t follow doctor’s orders, you can sue her for breach and attempt to recover the money you’ve spent on the cycle.

10. What happens if my donor cancels the cycle? What if my donor does not take her medications properly? When clients share with me their fears and concerns, they almost always mention how much a leap of faith egg donation requires. You know what?

I agree. Recipient parents working with anonymous donors are left to trust that the donor will be reliable, responsible and trustworthy. While your egg donor agreement should clearly remind the donor how much you have invested (time, emotion, money) and how much you are relying on her, I also offer my clients reassurance in other terms. Your donor and your cycle will be overseen by your physician, your clinic’s donor egg nurse coordinator and your agency representative (if you matched with your donor through an agency). Your donor will also have met with a mental health professional and she will be in contact with her attorney….all of these professionals want to keep your donor on track. Do occasional scheduling conflicts occur? Sure they do and the team of professionals working on your behalf will work to best manage the donor’s availability with your planned cycle. Remember something, your donor wants to help you build your family and she also wants to get paid.
Meds management is another matter that may keep recipients up at night. For those of us who’ve done IVF, we know full well how overwhelming the meds can be. These days donors not only receive clinic training but they are sent home with links to youtube videos, access to donor web-forums, passwords to clinic websites where they can find support and encouragement around meds management.

If your donor does become non-compliant, if she does not make her scheduled appointments or if she mismanages meds, likely your clinic will cancel the cycle. If you have an egg donor agreement in place and the donor either backs out or she is deemed by your clinic as not reliable, in most cases you will not be obligated to pay her and you will be able to pursue reimbursement of the money you’ve spent on the cycle. While this remedy is reserved for you in the terms of the egg donor agreement, please, please know that we rarely reach this point. By and large, a vast majority of donors are committed to doing their very best for you.

PVED’s Legal Advisor Amy Demma Esq. has created a list of frequently asked questions asked by intended parents, and parents via egg donation/surrogacy throughout the United States, Canada, Europe, and in some countries in Central and South America. If after reviewing PVED’s Legal FAQ, if you should have any other questions please feel free to contact Amy Demma directly, or contact Via Contact Page with your questions.

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 Information

Amy Demma is a New York licensed attorney and founder of Law Offices of Amy Demma, a practice focused on assisted family building. Passionately committed to family matters, Amy began her career at the Association for the help of Retarded Children. As a young attorney she was active on the Mother and Child HIV Task Force at the Brooklyn Women's Bar Association, She is credentialed in Family Mediation through Harvard Law School.

Amy is actively engaged in the nation's most established infertility patient advocacy groups and other non-profit and professional organizations.

In addition to recently being named to the PVED Board of Advisors, Amy sat as the Chair of RESOLVE of New York's Education Committee, served for many years as Vice President on the board at RESOLVE New England and most recently served as President of the Executive Committee of the Board of Directors at RESOLVE New England. Amy is a member of the Legal Professionals Group of the American Society of Reproductive Medicine, the Assisted Reproductive Technology Law Group at the American Bar Association and founded both the New York Fertility Professionals Networking Group as well as the New England Fertility Professionals Networking Group. She is a contributing writer to the American Fertility Association.

Considered an industry expert, Amy is a regular lecturer on matters related to assisted family building and both guest speaks and guest blogs through-out the year. In 2011, Amy launched Egg Donation Today and Embryo Donation Today, two specialized blogs addressing the many complexities of family building with a donor. Most importantly, Amy and her husband are the proud and blessed parents of college-bound twins conceived through In Vitro Fertilization.