In the realm of assisted reproductive technology, the importance of egg donation agreements in known donation arrangements cannot be overstated. When donors and recipients know each other, having clear legal agreements should be a best practice—not something to bypass for the sake of convenience. However, some clinics exploit a legal loophole that allows them to sidestep contracts entirely, which can create long-term problems for the families involved.
The Legal Loophole: How Clinics Try to Avoid Contracts
The loophole in question revolves around how eggs are released from a donor. Some clinics argue that if the donor releases her eggs to the clinic instead of directly to the recipient, then a contract isn’t necessary. Under this arrangement, clinics treat the transaction as if the eggs were simply being retrieved and stored, later being acquired by recipients as though they were strangers to the donor. In theory, this would make the donation an anonymous process and avoid the need for legal agreements between the parties.
This approach may sound straightforward, but it’s far from reflective of the reality in known donation situations. In such cases, the donor is not donating eggs to a general pool for unknown recipients. She is undergoing the egg retrieval procedure with the express purpose of helping someone she knows—whether that’s a family member, a friend, or an acquaintance. The idea that the donation could be treated as an impersonal transaction is, quite frankly, a fallacy.
Why the Loophole Exists: A Misunderstanding of Its Purpose
The loophole wasn’t created as a way for known donors and recipients to avoid contracts. It was designed for ID unknown a.k.a. “anonymous“ donations—where someone donates eggs to a clinic or bank, and there is no personal connection or opportunity for future contact between the donor and recipient. In these cases, contracts about future contact or confidentiality aren’t relevant because the parties don’t know each other and likely never will. (Though even with that plan, identities may later be learned through intended ID disclosure or inadvertent discovery using things like 23andMe, etc.—but that is a topic for another blog post!).
This is similar to anonymous sperm donation through banks. The donor and recipient never meet, and their future lives remain completely separate. The emotional and relational aspects that are often present in known donation scenarios simply don’t apply.
Why Contracts Are Vital in Known Donation Arrangements
In known donation arrangements, legal contracts are essential for a number of reasons:
1. Defining Relationships and Responsibilities: The relationship between the donor, the recipient, and the child born from the donation is complex. A contract can establish clear expectations and boundaries around future contact, confidentiality, and the role the donor may or may not play in the child’s life. Without this clarity, the parties could face confusion and conflict down the road.
2. Avoiding Future Legal Disputes: In the absence of a contract, future legal disputes can arise if, for example, the donor wants to assert parental rights or if the recipients want to restrict the donor’s involvement in the child’s life. A legal agreement protects all parties by making it clear from the outset what each person’s rights and responsibilities are.
3. Protecting the Interests of the Child: Perhaps most importantly, having a contract in place ensures that everyone is thinking about what is in the best interest of the child. Questions of future contact, emotional connection, and even access to medical history and disclosure need to be addressed, and a legal agreement forces all parties to have these crucial conversations early on.
Clinics Prioritizing Their Own Interests
Unfortunately, some clinics push for the no-contract route because it’s faster and easier for them. They can move donation recipient-patients along more quickly and don’t have to deal with the complexities of arranging legal counsel or waiting through the process of negotiations between the donor and recipient(s). In doing so, however, clinics can be prioritizing their own operational efficiency over the well-being of the families they serve.
If you are working with a clinic that encourage this practice, you still have the freedom to always choose your path—after all, you are the one affected in the long term! You can always insist on having contracts in place, even when working with that clinic—and rightly so. I always recommend contracts, not because I’m a lawyer looking for work, but because it’s the only reasonable way to ensure that all parties are protected and that the process proceeds with transparency and fairness and an eye for the real future lives of the participants.
The Bottom Line: Always Have a Contract
The moral of the story is simple: if you are engaging in known donor conception, there should always be a contract. Don’t let anyone rush you into a legal gray area for the sake of expedience. While the legal loophole may exist, it wasn’t intended for these types of situations. It was designed for cases where donors and recipients truly have no real way of knowing one another. For known donors and recipients, a contract is not just a formality—it’s a necessary tool for ensuring that everyone’s rights are protected and that future relationships are as smooth as possible.
Don’t leave the future to chance. Make sure you have a solid legal agreement in place before moving forward.
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**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact our office should you wish to discuss the specifics of your situation and to hire our firm to represent you.
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