Surrogacy, Part 4: Gamete Donor Contracts

Surrogacy and in-vitro fertilization are generally not possible without gamete donors. However, like surrogacy contracts, gamete donation isn’t addressed by North Carolina statutes or cases. Both donors and intended parents need to protect themselves under North Carolina’s contract laws by making sure they have a strong contract addressing their interests. As with surrogacy, a contract needs to be reviewed by independent legal counsel for each party prior to signing and then signed before any gametes are fertilized.

Gamete Donor Contracts

A gamete donor contract covers many of the same topics that surrogacy contracts do – parental rights, reimbursement and fees, medical risks and procedures, and representations about medical history and the results of psychological and medical screenings. Some concerns of gamete donation, however, must be handled differently than surrogacy. The procedures involved in gamete donation are much less invasive and more short-term than carrying an entire pregnancy, changing the balance of risk and the typical amounts of payment. Donor contracts must also address the permitted uses for the donor gametes, including whether resulting embryos can be donated for research, donated to different intended parents, or disposed of.

Anonymity Issues

Anonymity issues are in gamete donor contracts must also be handled differently than in a surrogacy contract. Intended parents are in frequent contact with surrogates, but gamete donation can be conducted through an agency to be completely anonymous even to the intended parents. A gamete donor’s anonymity may be harder to protect in the long term, since their genetic ties to the child could lead to a child identifying a donor through gene testing, despite best efforts to maintain the donor’s anonymity. Those genetic ties will also mean that the family medical history of the donor may be needed later in the child’s life or the identity of a donor may be needed to find candidates for organ donation.

There are various ways to choose a donor, and those differences may also impact how a contract with the intended parents is drafted. Some donors, including most sperm donors, will have already completed their donations, registered their health information, and signed a contract regarding anonymity and the permitted uses of their gametes. The intended parents must either accept these agreements or use a different donor. Sometimes donors are friends or family, chosen for their connections to the intended parents.

In these cases, contact and anonymity provisions would look very different and will likely be much more contentious than with unconnected donors. Egg donation often provides intended parents with more leeway to negotiate various terms of a donor contract. Implantation is usually more successful if the eggs are harvested and used fresh, so it is likely that a potential egg donor can be screened by the intended parents and the terms of the donation can be discussed prior to harvesting any eggs.

Purpose of a Donor Contract

The most important purpose of a donor contract, regardless of how it is formed, is making sure that the intentions and desires of the donor and the intended parents match up. If you are a donor or an intended parent, be sure you understand and are completely comfortable with the terms of your donor contract. No one wants to find out they disagree on the ethics of embryo disposal after they have already created an embryo or that there are different expectations about disclosing the donor to the child after a child is already born.