What to Expect at the Legal Stage of an Embryo Donation

Thinking about embryo donation? Whether you're considering donating your stored embryos or using donated embryos to build your family, it's important to understand the legal process involved. At Tsong Law Group, we specialize in helping families navigate these waters. Let's break down the legal steps of embryo donation in simple terms. 

What is an Embryo Donation? 

Embryo donation is when individuals or couples who have completed fertility treatments donate their remaining frozen embryos to help someone else have a baby. This can help people who can't have children on their own, like individuals or couples who have experienced infertility, same-sex couples, or those with genetic concerns. Embryo donation arrangements also occur between couples create embryos but split up or individuals who create embryos but then want to add a partner as a co-owner.  

The Legal Process: Step by Step 

1. Initial Screening 

Prior to the contract drafting stage, both donor and recipient parties typically undergo psychological screening to ensure all parties understand the emotional and ethical implications of embryo donation. Unlike sperm or egg donation, embryo donation involves already created embryos, which means genetic and std testing has typically already been completed during the IVF process. 

All embryo donations must use assisted reproduction techniques to achieve pregnancy, as the embryos will be transferred to the recipient's uterus (or a gestational carrier's uterus) by a fertility specialist. 

2. Choosing Your Attorney 

The legal stage consists of each party—the embryo donors and the intended recipient(s)—choosing and signing on with their own lawyer. Both parties will have separate legal representation throughout the embryo donation process. The legal fees for both parties are usually covered by the recipients or intended parents. It is crucial to select an attorney experienced in drafting embryo donation agreements and familiar with the applicable state laws. 

3. Representation Agreement 

Once selected, the lawyer will send the party a representation agreement or letter, which will explain the scope of services the lawyer is providing. Both the embryo donors and the intended parents will sign their respective lawyers’ representation agreement. This is not the actual contract between the parties but only your agreement to be represented by your lawyer. 

4. Drafting the Embryo Donation Agreement 

In some cases, the donor’s lawyer will draft the embryo donation agreement based on the information the agency have given them. In other cases, the intended parents’ lawyer drafts the embryo donation agreement. In some cases, the contract may be pre-drafted and the parties review and revise them separately. 

Your embryo donation agreement will cover details such as: 

• Parental rights and responsibilities of any children born from the donated embryos 

• Financial obligations related to storage and transfer of the embryos 

• Future contact between the parties including with any resulting children 

• Sharing of medical information and updates on contact information 

• Confidentiality requirements 

• Disposition of any unused embryos 

  
  

The agreement will also describe a level of disclosure of identities, ranging from anonymous to fully disclosed. Unlike sperm or egg donation, embryo donation involves genetic material from two people, and if one or more gametes is donated, then the contract must reference that the prior donor has relinquished their rights and there is no limitation on donation by the donors.  

5. Reviewing the Embryo Donation Agreement 

Schedule a review appointment with your attorney to go through the embryo donation agreement thoroughly. Read the agreement beforehand because your lawyer will not read it aloud for you. Make sure your spouse is also present for the review if they are co-owners of the embryo, or co-recipients, as they will be a party to the agreement. The review is the time to address any questions or suggest changes. 

6. Negotiating and Finalizing 

Once you approve the draft or redline your attorney sends you after your review, they will present it to the other side's attorney and the negotiation begins. Once both parties approve the latest version, a final embryo donation agreement will then be circulated for signing. 

7. Signing the Agreement 

Most of the time, the parties need to notarize their embryo donation agreements due to the significant legal implications of transferring potential human life. Some states such as New York will require a notarized contract to be effective. The attorney may send you a PDF which can be printed, or e-signed, and advise if you need to notarize the agreement. 

8. Issuing of Legal Clearance 

Once both parties have signed, the intended parents' attorney will issue a legal clearance letter to the fertility clinic which allows the embryo transfer procedures to occur or for existing embryos to be transferred to the intended parents' names in the clinic's storage system. 

Common Questions About Embryo Donation Laws 

Can embryo donors claim parental rights later? 

Generally, no, if proper legal agreements are in place. Separate representation by lawyers will ensure there is no claim later on that one party didn't understand what they were signing. Be sure to talk to your attorney about whether you should do a second parent adoption if you are a same-sex couple. Some states may also recommend or require a post-birth legal proceeding to terminate donor rights and establish legal parentage for the recipient parents. 

Do children have the right to know who their embryo donors were? 

This depends on state laws and the agreement between donors and recipients. Colorado currently will provide adult donor-conceived children the right to access donor information, while other states like California and Washington will allow the donor to determine if they agree to disclosure if the child approaches the clinic after turning 18. Note that studies do show that donor-conceived children benefit from being told about their donor conception and having a chance to connect with the donors, especially in the case where they have biological siblings, from the donor’s family. 

How is embryo donation different from embryo adoption? 

While the terms are sometimes used interchangeably, "embryo adoption" often implies a more adoption-like process with home studies and other adoption practices. "Embryo donation" typically refers to the medical and legal transfer of embryos without the full adoption framework. However, both processes accomplish the same goal: transferring legal rights to frozen embryos from the creators to intended parents. 

Final Thoughts 

Embryo donation can be a wonderful way to build a family while helping another family complete their fertility journey, but the legal steps are important to protect everyone involved. Working with an experienced fertility lawyer ensures your family is legally protected now and in the future. 

At Tsong Law Group, we help guide you through every legal step of the embryo donation process, explaining complicated legal terms in simple language and making sure your family's future is secure. 

Have questions about embryo donation or other family-building options? Contact us today for a consultation about your specific situation.