Embryo donation is a beautiful option both for those with cryopreserved embryos, not wanting to see them discarded, and those looking for a path to parenthood.

As one of the newer forms of assisted reproductive technology, the law has fallen behind and courts and legislatures have struggled with best ways to regulate disputes involving embryos. Very few states have laws specific to embryo donation, yet the practice is common throughout the country.

A legal agreement prepared by experienced counsel is your best protection entering into an embryo donation arrangement.

The agreement will address the fundamental understandings between the parties, including that the recipients will be the parents of any child conceived from the donated embryos. The agreement may also address issues such as:

• Confidentiality and Disclosure. What are the expectation of the parties as to knowing identity of each other as well as for future children and family members?

• Disposition. Can or must remaining embryos be donated to others or science or research?

• Future Communication. What future contact and communications will be expected or required, such as the communication of the discovery of a genetic condition in a party of resulting child?

• Liability. What if something unexpected happens, what risks are the parties undertaking?

• Expenses. How are legal, testing, transportation, storage fees handled?

Embryo Disposition Agreements

It is a good idea for intended parents who have frozen embryos to execute an embryo disposition agreement addressing what will happen to the remaining embryos upon death or divorce (you don’t want to leave this up to a judge!). Think of this agreement as a pre or post-nuptial agreement for embryos (though you do not need to be married to execute one of these agreements).

In the event of a break-up or divorce, intended parents may choose to award the embryos to either party, destroy the unused embryos, or donate them to a medical facility for research purposes. You can also choose to donate embryos to a matching agency or a third-party so that another family can have children. Intended parents can designate what each party may do with the frozen embryos after the dissolution of the relationship. Additionally, these agreements may address what happens to the embryos upon the death of either parent, or both, and whether each parent intends to be considered a legal parent after death for the purposes of survivorship benefits and inheritance. Both parents need to be independently represented by separate counsel when entering into an embryo disposition agreement.

The firm is not able to represent both the embryo donor(s) and the embryo recipient(s) in the same embryo donation or disposition. Independent counsel for all parties is an important element of the arrangement. We are always happy to recommend other attorneys skilled in this area who can provide professional representation to the other party.