What goes into an embryo donation contract?

After pursuing IVF, some people have embryos remaining that they no longer plan to use. Those embryos may be discarded, donated for permitted research or other purposes, or donated to another person or couple to help them build a family.

Embryo donation is legal in Canada, but it is subject to federal assisted reproduction laws, including rules governing consent and the use of embryos. Fertility clinics will also typically require the donors and recipients to have an embryo donation agreement in place before proceeding.

What is an embryo donation agreement?

An embryo donation agreement documents the donation and sets out the intentions, expectations and responsibilities of everyone involved.

The parties are generally:

• the embryo donors — usually the person or couple for whose reproductive use the embryos were originally created; and
• the intended parent or parents — the person or couple receiving the donated embryos with the intention of becoming the parent(s) of any resulting child.

One of the most important purposes of the agreement is to make the parties' intentions about parentage clear. Embryo donation agreements typically contain strong language confirming that the donors do not intend to be the parents of any child born from the donated embryos. The donors are not intended to have custody or access rights, nor are they intended to have financial responsibility for raising the child.

But an embryo donation agreement deals with much more than parentage.

What should an embryo donation agreement address?

Every embryo donation arrangement is different. The agreement should reflect what the particular donors and intended parents have decided about issues that may arise not only now, but many years in the future.

For example:

• Will a child born from the donation be able to contact or meet the donors in the future?
• What information about the donors will be available to the child?
• Will the donors provide updated medical or genetic information if something changes in their health?
• Do the donors want to be notified if the child develops a medical condition that may have a hereditary or genetic component?
• Who may be told about the embryo donation?
• If the donors have additional children in the future, will the intended parents be notified?
• Will the intended parents tell the donors if a child is born, and will information such as the child's date of birth be shared?
• Who will carry the pregnancy? Will a gestational surrogate be involved?
• Are the donors donating embryos to more than one individual or family?
• What happens if embryos remain after the intended parents have completed their family? Can donated embryos ever be donated to someone else?
• How will important medical information be exchanged if one of the parties dies or can no longer be contacted?

These questions can be particularly important because embryo donation can create genetic relationships between people growing up in different families. A child conceived from donated embryos may have full genetic siblings being raised by the donors, or by another family that received embryos from the same donors.

Who pays the legal fees?

The embryo donors and intended parents will typically have separate lawyers so that each can receive independent legal advice about the agreement.

Although the donors have their own lawyer, the intended parents typically cover the donors' reasonable legal fees, in addition to paying for their own lawyer. This allows the donors to obtain independent legal advice without being out of pocket for participating in the donation process.

The donors' lawyer remains the donors' lawyer: having the intended parents pay the legal bill does not change who the lawyer represents or the lawyer's professional obligations to the donors.

Thinking beyond the legal paperwork

Embryo donation can create lifelong relationships and questions involving identity, genetic siblings, medical information, privacy and disclosure.

The law can establish rights and responsibilities, but a good embryo donation agreement should also encourage the parties to think through situations that may not arise for many years.

There is no single “right” approach to matters such as future contact or information sharing. Some donations are relatively open, while others involve more limited contact. What matters is that donors and intended parents understand one another's expectations and make informed decisions before the embryos are transferred.

Embryo donation is a significant decision with lifelong implications for donors, intended parents and, most importantly, any children who may be born from the donation. Careful legal advice and open discussion at the outset can provide greater certainty and reduce the risk of misunderstandings later.

If you are considering embryo donation in Canada as an embryo donor or intended parent, Lisa Feldstein Law Office can help you understand the legal issues, work through the decisions that should be addressed, and prepare or review an embryo donation agreement.

If you are pursuing embryo donation as a donor or intended parent, give us a call or text us at 416-937-8768. We would be delighted to help you.

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