Cori H. Johnson, Esq.
Law Offices of Gregory S. Masler
1 Jenner, Suite 230
Irvine, California 92618
Telephone: (949) 679-7180
Fax: (949) 679-7185
What many consider a “traditional egg donor match” is an arrangement between one set of Intended Parents (or a single Intended Parent) and an egg donor for a single egg donation retrieval procedure. These type of arrangements enable the Intended Parents to utilize their egg donor’s donated eggs to assist in their family formation.
The current laws regarding egg donation arrangements vary state to state, but only a handful of states have cases or statutes that address egg donation arrangements. Gregory S. Masler of my office spoke about this topic and included the then current laws regarding egg donation arrangements in his written material for his talk at the ABA Conference last fall in Portland. Those of you interested in that topic can refer to his paper for more information regarding the laws dealing with egg donation arrangements.1
My presentation will focus on non-traditional egg donation arrangements. With the advent of advances in medical technology as well as the increased number of Intended Parents wanting donated eggs egg donation arrangements now encompass different types of egg donation arrangements. Examples of these new arrangements, which I will discuss below, include split or shared donor cycle arrangements, inhouse agency cycles, multiple cycles between the same Intended Parents and egg donor, exclusivity between the Donor and one set of Intended Parents, and donation for research purposes only.
Split/Shared Donor Cycles
A split or shared egg donor arrangement (“shared egg donor arrangements”) involve more than one set of Intended Parents (or single Parent), who share the eggs retrieved from the same egg donor from a single retrieval procedure.
The primary benefit of a split or shared cycle arrangement is financial. These arrangements enable Intended Parents to incur less costs by sharing the expenses, such as the medical/psychological screening of the egg donor, her medications and insurance, the retrieval procedure, and the egg donor’s compensation and reimbursement expenses, such as travel costs.
For all the benefits of shared egg donation arrangements, there are concerns and questions that must be considered by the parties to a shared egg donation arrangements For example, do the parties require separate legal representation; who gets the highest quality eggs; and what happens if there are not enough viable eggs or an odd number of viable eggs? Also, what if the Intended Parents differ on provisions in the egg donation agreement, such as disposition of any remaining eggs or embryos, or future contact and anonymity between the parties?
Regarding separate representation of all parties, while the Parties are not required to be represented by separate legal counsel, let alone be represented at all by an attorney, it is in the best interest of the parties if they each have separate legal counsel. This ensures that the Parties have an opportunity to discuss their respective rights under the egg donation agreement, as well as to mitigate a claim by the egg donor that she did not understand the egg donor agreement or had the opportunity to negotiate its terms of the egg donation agreement.
An issue with shared donor arrangement is, who gets the highest quality eggs? This issue should be addressed by the drafting attorney in the egg donor agreement; however, such clauses are often convoluted. The following is an example of verbiage that has been utilized for the egg donor agreement:
The Parties agree that ½ of the retrieved eggs, which are of “mature” quality, (as determined by the IVF Physician and/or the embryologist) shall be donated to Intended Parents A, and the other ½ of the retrieved eggs of “mature” quality shall be donated to Intended Parents B. Further, the IVF Physician who performs the egg retrieval procedure shall decide and select which eggs will go to the possession of Intended Parents A, and which eggs shall go to the possession of Intended Parents B; and in the event an odd number of eggs are retrieved, Intended Parents A (and not Intended Parents B) shall receive the extra egg.
A more effective way to initially resolve the issue of who receives the highest quality eggs lies with the IVF clinic facilitating the shared egg donation arrangement, including good communication between the IVF physician and the physician’s staff and the sets of Intended Parents regarding the shared cycle, and disclosing realistic expectations regarding the number of viable eggs each Intended Parent party can expect to receive, and who gets what eggs. What was agreed upon between the sets of Intended Parents and the IVF physician can then be the basis of any provision in the Intended Parents’ egg donor agreement regarding disposition of the egg donor’s eggs.
Similar to the issue of who receives the best quality eggs, is what happens if there is an insufficient number of eggs retrieved to meet each Intended Parent’s egg quota provided for in the egg donation agreement., This should also be discussed between the sets of Intended Parents and can also be addressed in the egg donor agreement.
The Parties to a shared egg donation arrangement need to consider issues regarding the disposition of the egg donor’s eggs that each set of Intended Parents may receive as well as any resulting embryos. This issue shifts focus to the Donor’s wish regarding the Intended Parents use of her eggs and the resulting embryos after the Intended Parents have completed their family formation attempts. From a practical standpoint, if the egg donor places restrictions on the disposition, both sets of Intended Parents will likely agree the restriction (or not participate in that shared arrangement), and this will be documented in the egg donation Agreement.
No less important than the issues mentioned above, is how the sets of Intended Parents will share the costs of the shared egg donation arrangement, including the medical expenses, egg donor’s compensation, travel costs (if any), the insurance policy premium for the egg donor, and her legal fees. These costs may be split equally or proportionally agreed to between the Intended Parents. Below is an example of verbiage that has been used in an shared egg donation arrangement agreement for a match where the costs were shared equally:
The Intended Parents A and Intended Parents B have previously agreed that they shall share evenly the responsibility for, and shall pay, the entire egg donor’s medical expenses associated with the egg retrieval procedure. As compensation to egg donor for her pain, discomfort, inconvenience, and medical risks assumed in connection with the egg retrieval and donation contemplated by this egg donation agreement, the egg donor shall be paid the sum of ______, as follows (and as previously agreed upon between Intended Parents A and Intended Parents B), with each said couple paying half of the egg donor’s compensation amount as indicated above.
There are other issues to be addressed between the parties to a to a shared egg donation arrangement, including confidentiality/anonymity, breach issues, the potential for future contact, but these issues are no different than what the parties have to consider in a traditional egg donation agreement.
In-House Egg Donation Program
In-house egg donation arrangements are different than the shared egg donation arrangements discussed above, in that one or more sets of Intended Parents receive eggs from an agency or fertility clinic rather than going through a traditional egg donation arrangement directly with an egg donor.
These type of in-house egg donation arrangements are considered to by many to be advantageous for a variety of reasons. One of the main reasons seems to be the cost effective nature of utilizing the agency or fertility clinic to facilitate the whole process for a fee. Intended Parents are typically not responsible for all the costs associated with the egg donor’s screening, medications, legal fees, but rather the agency pays for all of these costs, while the Intended Parents pay a flat fee to the agency for their services. This flat fee includes not only the agency’s services, but also covers the medical costs and expenses of the fertility center.
The reduction of risks to the Intended Parents may be another benefit to Intended Parents contemplating of an in-house egg donation arrangement so long as the agency, and not the Intended Parents, assume all of the financial risks if the egg donor fails her medical screening, suffers a dropped or cancelled cycle, or if the retrieval process is unsuccessful, and if insufficient eggs are retrieved, and/or if no eggs are retrieved.
One such in-house donor program in the United States is Donor Nexus, which is a California based agency that offers Intended Parents in-house shared egg donation arrangements.2 The Program Director of Donor Nexus, Lucy Solie-Vilker, believes their in-house agency program provides high quality yet affordable egg donation treatments to Intended Parents along with other benefits, including reduced risk and high success rates. For example, one of their in-house programs is their Shared Hope Cycle, which guarantees Intended Parents five eggs and two suitable embryos.3 Any remaining eggs not provided to Intended Parents are then placed in the Agency’s egg bank and made available to future Intended Parents.
Regarding the specifics of an in-house egg donation arrangement, there are similar questions and issues that must be addressed as with a shared egg donation arrangement. As discussed above, an effective way to resolve a number of issues is through clear communication between the in-house agency program and the Parties involved. However, an egg donation agreement between the agency and the Intended Parents and between the agency and an egg donor is also crucial to the process, which should also include a consultation with an attorney regarding the egg donation agreement. Such an egg donation agreement should address several key elements.
Egg Freezing and Banking
Much of the above has addressed fresh egg donation arrangements, whereby an egg donor donates fresh eggs that are immediately used by Intended Parents, with any remaining embryos potentially frozen by the Intended Parents and/or an agency for future donation. While the majority of egg donation arrangements in the United States utilize freshly donated eggs, a new trend over the last few years has been the utilization of frozen eggs, such as through an egg banking program.
In 2013, with the announcement by the American Society for Reproductive Medicine (ASRM) that egg freezing options were no longer an experimental status,4 the number of agencies, clinics, and businesses offering egg banking services began to steadily rise. With an egg banking program, an egg bank will obtain frozen eggs from a fertility clinic or through direct recruitment of egg donors, whereby the egg donor will undergo a retrieval procedure, and the retrieved eggs will be frozen and provided to the egg bank to be made available to prospective Intended Parents.
However, an egg banking program, unlike a traditional egg donation arrangement where the egg donor’s compensation is categorized as payment for her time, inconvenience, and efforts rather than for the egg donor selling her genetic material, these type of egg banking arrangements include an aspect of buying and selling eggs. Due to this, legal issues are raised, which could be an entire discussion in itself, though here I will only briefly address a few points.
As a general overview, the National Organ Transport Act of 1984 made it “unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation…”5 The Act was a response to various concerns, including turning the organs into commodities and questions over the dehumanization of the individual providing the organ. The Act defined the term “human organ” to include many items including kidneys, liver, heart, pancreas, bone marrow, etc., however, it did not address and did not specifically prevent payment for other types of donations, including sperm and eggs.6 In addition, the U.S. Food and Drug Administration (FDA) does place strict regulatory requires on the use of donated reproductive tissue, which includes eggs, including standards on the screening and testing of donors and record keeping.7
Even though the National Organ Transport Act by omission excludes payment for eggs and the FDA places regulation on the testing and screening of potential egg donors, there is currently no legislation about the right to buy and sell eggs such as through a banking program. Furthermore, while there are states that have egg donation statutes that allow for reasonable compensation to an egg donor for the actual donation, there is no legislation addressing whether an agency, fertility clinic, or an egg banking program can pay an egg donor specifically for her eggs and then provide those eggs to Intended Parents for a fee.
A key argument regarding the validity of such an egg freezing and banking arrangement lies in the fact that there is no actual buying and selling of the egg donor’s eggs. Similar to a traditional egg donation arrangement, an egg donor participating in an egg banking program is not being paid to sell her genetic material nor is she paid based on the number of eggs retrieved, but rather the egg donor is compensated for her time, inconvenience, and efforts for undergoing the retrieval procedure.
In addition, there is no profit being made on the egg donor’s egg by the egg bank, as the bank generally pays a flat fee to either the fertility clinic or to the egg donor directly for the egg donor’s eggs regardless of the quantity or quality of the eggs retrieved. And when the egg bank provides the eggs to Intended Parents, the Intended Parents do not pay a fee specifically for the eggs, but rather they pay a service fee to the egg bank for the matching and facilitating the process.
With that being said, the number of Intended Parents utilizing egg banking programs is on the rise due to the benefits that many Intended Parents see with these type of arrangements. Such benefits include lower monetary costs or sharing costs, the quality of the donated eggs, the egg donor pool (number of available donors), and the known aspect of how many eggs will be provided. In addition, many egg banking programs also provide Intended Parents with a guarantee as part of the arrangement, which provides Intended Parents with either a money back possibility or the ability to utilize more eggs if the initial process proves unsuccessful.
One of the many benefits of egg banking is affordability. An egg banking program offers a more cost efficient means of obtaining eggs as the costs of a frozen egg cycle may be reduced for Intended Parents if they do not have the same costs of a traditional egg donation arrangement such as the egg donor’s compensation, travel costs, medication, the retrieval procedure, insurance costs, screenings, monitoring, etc.
Another benefit of an egg banking program is the quality of the frozen eggs. Since the egg donors have already gone through a complete medical, psychological, and genetic screening process before the eggs are retrieved and frozen, Intended Parents know that they are receiving quality eggs from an egg donor whose cycle was not cancelled for failing her medical or psychological.
In addition, the pool of egg donors as well as the number of eggs available is larger as the egg bank will generally have many egg donor profiles available for Intended Parents to select from. Also, an egg bank eliminates the wait time for the Intended Parents as their chosen egg donor does not have to undergo the egg retrieval procedure. Instead the eggs are ready and available to them within a few weeks rather than several months as with a traditional egg donation arrangement.
Lastly, success rates have also played a factor, as frozen egg donor cycles are not far behind in the percentage of live births that result from the frozen egg donor cycles.8
One such egg banking program in the United States is Donor Egg Bank USA (hereinafter DEB), which is a co-operative program between DEB and fertility clinics throughout the United States. DEB obtains frozen egg donor eggs from IVF Clinics, who are validated by DEB, through the payment of a flat fee, which are then made available through the DEB’s egg donor registry.9
The CEO of DEB, Heidi Hayes, believes that DEB affords Intended Parents many benefits as compared to a traditional egg donation arrangement, including convenience, affordability, no wait time for eggs, and in some cases a money-back guarantee. For example, DEB understands that the financial costs associated with an egg bank arraignment is one of the main reasons why Intended Parents may not seek treatment and as such, DEB offers an Assured Refund Plan, which is the only money-back guaranteed plan of its kind in the United States for frozen eggs.10
Miscellaneous/Other Arrangements (Multiple Cycles and Research)
I also want to briefly discuss a few other relatively new types of egg donation arrangements that I am seeing more frequently, including multiple cycle arrangements, exclusivity agreements, and the upcoming possibility of egg donation arrangements for research purposes only.
Multiple cycle egg donations arrangements arise when the Intended Parents have the option to request more than one cycle with their chosen egg donor.
With an exclusivity arrangement, the egg donor agrees to donate her eggs to only one set of Intended Parents with the understanding that exclusivity only attaches if a live birth results from the donation. This option should be clearly laid out in the egg donation agreement, including the terms and parameters of the exclusivity arrangement.
Another relatively new arrangement is the possibility of egg donation arrangements for research purpose only. In California, AB 2531, which is being reviewed in the Senate, would allow any egg donor who provides eggs specifically for research purposes to be compensated for her time, discomfort and inconvenience in the same manner as an egg donor donating her eggs for procreation purposes.11 Currently in California, researches are allowed to reimburse egg donors for their expenses only, but disallows any other type of payment. However, the Bill, which was introduced in February of this year, would repeal the old law, which prohibits researchers from compensating a woman for providing her eggs. 12 At the time of publication of this paper, the Senate is on their third review.
As medical technologies advance and change and new types of egg donation arrangements arise, it is more important than ever for all Parties to clearly understand the process, the procedures, and the legal requirements before proceeding with any of the above options. Being informed, using experienced professionals, and asking questions will enable both Intended Parents and egg donors to have realistic expectations of the process while understanding their respective rights and responsibilities.
The information contained in these preceding six (6) pages of materials are not intended to provide legal advice, and is published for informational purposes only. It is not intended to be a substitute for legal advice or opinion, and the publication of this information is not intended to create an attorney-client relationship between the author and the reader. No person should act on information contained in these written materials without obtaining advice for legal counsel. The attorneys at the Law Office if Gregory S. Masler are licensed to practice law in the State of California, and in the State of New York, and do not offer advice as to the laws of any other state. The reader should seek advice from counsel in the state(s) of their residence.
- 1 Gregory Masler, “Anatomy of an Egg Donor Contract: Everything You Need to Know to Be an Eggspert.” American Bar Association, Family Law Section, October 15, 2015, available at: http://www.americanbar.org/tools/digitalassetabstract.html/content/dam/aba/events/family_law/2015/10/eggdonor.pdf
- 2 Donor Nexus, Services, available at http://myeggdonation.com/services/ (last visited on August 5, 2016)
- 3 Donor Nexus, Shared Hope Fresh Egg Donor Cycle, available at http://myeggdonation.com/services/shared-donorfresh-ivf-cycle/ (last visited on August 5, 2016)
- 4 Practice Committees American Society of Reproductive Medicine (ASRM) and the Society for Assisted
Reproductive Technology, Mature Oocyte Cryopreservation: A Guideline, 99 Fertil. Steril. 37 (2013).
- 5 National Organ Transplant Act (1984 Pub.L. 98–507), Title III, approved October 19, 1984
- 6 Id.
- 7 21 CFR 1271 (2015)
- 8 SART, National Summary Report, available at https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0. (last visited on August 4, 2016)
- 9 Donor Egg Bank USA, Our Program, available at https://donoreggbankusa.com/our-program/about-us (last visited on August 4, 2016)
- 10 Donor Egg Bank USA, Assured Refund Plan, available at https://donoreggbankusa.com/financial-plans/assuredrefund-plan (last visited on August 4, 2016)
- 11 A.B. 2531 2015-2016 Regular Session (CA 2016), available at
- 12 Id.