Embryo Donation Law

What happens to leftover embryos?

When people are done building their families they may have surplus frozen embryos stored at a fertility clinic that they no longer need. They may decide to destroy the embryos or donate them to research. Or, they can donate them to a person or couple so that someone else can have a child using those embryos.

Is embryo donation legal?

Yes. In Canada it is legal to donate embryos. However it is not legal to buy or sell embryos.

I am thinking about donating my embryos or I want to use donated embryos to have a child. What do I have to know?

If you are pursuing embryo donation, whether as a parent-to-be or a donor, legal advice is essential. Many fertility clinics will not facilitate embryo donations, or perform embryo transfers, without a contract in place.

Both parties (the embryo recipients and the embryo donors) must have their OWN lawyers. This ensures the lawyer is not in a conflict of interest. The  intended parents/recipients typically meet their lawyer first. They receive legal advice and their lawyer creates the first draft of the agreement. Then the donors meet with their lawyer to receive advice and discuss the contract; they may decide to propose changes. The donors' lawyer will communicate with the recipients' lawyer until the changes are made to everyone's satisfaction. After the parties sign the agreement, the lawyer for the intended parents will notify the clinic.

Many clinics will also require the parties go through counselling prior to embryo donation. This is highly recommended, even if it is not required.

What goes into an embryo donation contract?

Embryo donation agreements all have one thing in common: they contain strong language stating that the embryos donors are not the parents of the child. The parties are all in agreement that the donors should not be entitled to access or custody of the child, and that they should not be financially responsible for supporting the child. Beyond the legal basics, every embryo donation contract is different because it reflects the parties' intentions. A contract will include the parties' decisions to questions such as:

  • will the child be able to meet the donors in the future?
  • will the donors provide updated medical information if their health changes?
  • who is entitled to know about the embryo donation?
  • if the donors have another child in the future, will they notify the recipients/intended parents?
  • who will be carrying the child? will a surrogate be involved?
  • do the donors want to be notified if the child develops a disease or disorder that may be hereditary?
  • are the donors donating some of their embryos to another person or couple at the same time?

If you are pursuing embryo donation, give us a call. We would be delighted to help you.

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