Legal Assistance With Embryo Donation Questions

Achieving parenthood via an embryo donation benefits couples who lack a source of viable sperm, eggs, or both, to achieve a pregnancy. One member of the couple may carry the child if they are able to experience pregnancy, or the child may be carried by a surrogate. Given the number of choices available in embryo donations, it is especially critical to have all legal matters thoroughly examined before the donation happens.

Attorney Melissa Torto, founder of the Law Office of Melissa L. Torto, LLC, devotes her entire law practice to assisting couples seeking to become parents through Assisted Reproductive Technology (ART). She has extensive experience with drawing up contracts for surrogate pregnancy arrangements, egg donations and embryo transfers. While she is based in Boston, she serves clients across the country and is familiar with state and local laws surrounding ART.

Considerations When Drafting An Embryo Donation Contract

Melissa typically represents the intended parents in embryo donations – that is, the couple receiving the donation. Regardless of her client’s role in the process, she strives to develop embryo donation contracts that address all of the following:

• Spelling out the roles and expectations of each person mentioned in the contract
• Clarifying who the intended parents are for a child resulting from a successful pregnancy using the embryos
• Statements of health for the embryos and the person who will carry the pregnancy
• Releasing the embryo donor(s) (sperm and egg donors) and the pregnancy surrogate from parental rights
• The degree of openness between the embryo donors and the intended parents before and after the child is born
• The number of embryos being donated and what will happen to embryos that are not used
• Resolutions for identified risks, liabilities or legal challenges to the process

Choosing to become parents via embryo donation is a big step. You can rely on Melissa to be knowledgeable, sensitive and supportive during this time. She is happy to answer questions you may have about the process.

Process Overview

Like IVF, embryo donation is a form of assisted reproduction. Couples who are using IVF may successfully have a child without using all embryos. If they do not intend to have more children, their traditional options are to store the embryos long-term or have them destroyed. However, some instead choose to donate these embryos to other couples who are looking to expand their families.

The process involves screening by both sides, as donors and recipients get to choose one another. They will often fill out profiles addressing things like personal characteristics, the number of embryos desired and any other important criteria. Donating parents have to sign away their rights, and the couples may need to decide if they’ll have an open or closed relationship after the donation.

Ethical Considerations

Many couples believe that embryo donation is the most ethical decision, as opposed to destroying viable embryos when there are still other couples who could benefit from them. This is a personal choice for all involved.

Another ethical consideration is getting consent from all parties, which is required. Furthermore, it is important to consider the long-term impact on a potential child’s life. For instance, would it be more ethical to have an open relationship between all parties so that the child can learn more about their biological history and medical history? Counseling before or after donation often addresses these concerns.

Common Challenges And Solutions

The main challenge is often in finding a match. This is why pre-screening is helpful. Both sides need to agree on the match and it is best if the donor has at least two embryos, as this increases the chances of success.

Another hurdle is the cost, which can range from $5,000 to $15,000. Potential costs include embryo shipment, pre-donation counseling, clinical approval, FDA screening, medical treatments and medication, and more. This is all in addition to the cost of a pregnancy and birth if the embryo donation is successful. There is no guarantee, though the technology has improved dramatically over the years as couples seek new and innovative ways to expand their families.

How Does Divorce Impact Frozen Embryos?

Divorce introduces complex legal questions when couples have stored embryos remaining from fertility treatments. Disputes require courts to balance competing interests between former spouses who may have drastically different wishes for embryos created during their marriage. Understanding how Massachusetts and other states handle these sensitive matters helps couples protect their interests during both the creation and potential dissolution of their relationships.

The legal status of frozen embryos varies significantly across jurisdictions. Courts have taken different approaches when determining whether embryos constitute property subject to division, potential life deserving special consideration or something between these extremes. This legal uncertainty makes advance planning through comprehensive written agreements absolutely critical for couples undergoing assisted reproductive technology procedures.

Written agreements executed before embryo creation carry substantial weight in divorce proceedings. These contracts typically address what happens to stored embryos if the relationship ends, including options for one party to use them, donate them to another couple, donate them for research or have them destroyed. Courts in most states enforce these agreements when they clearly express both parties’ intentions and were signed voluntarily with full understanding of the implications.

When couples lack written agreements, courts apply various legal frameworks to resolve disputes. Some jurisdictions follow the contract approach, looking for any evidence of the parties’ intent even without formal documentation. Others apply a balancing test, weighing one spouse’s interest in becoming a genetic parent against the other spouse’s right to avoid unwanted parenthood. A third approach presumes that the party wishing to avoid procreation should prevail, recognizing the significant implications of forced genetic parenthood.

Massachusetts courts have addressed frozen embryo disputes by emphasizing the importance of prior written agreements between the parties. When such agreements exist and meet legal requirements for enforceability, courts typically honor those terms rather than substituting judicial decision-making for the parties’ expressed wishes. Without clear agreements, courts examine all circumstances surrounding the embryo creation and storage to determine the most equitable resolution.

Financial considerations also arise in embryo disputes. Questions include who pays ongoing storage fees, whether one party must compensate the other for relinquishing rights and how to value embryos if treated as marital property. These practical matters further complicate already emotional disputes.

Couples beginning fertility treatments should address these possibilities before creating embryos. Working with an attorney experienced in reproductive law helps create comprehensive agreements that protect both parties’ interests and provide clear guidance if circumstances change. 

Put Your Parenting Plans In The Hands Of An Experienced, Compassionate Lawyer

Turn to Melissa Torto for trustworthy reproductive law advice delivered in a calm, kind and friendly manner. Call 617-812-9974 to request an online consultation, or send a message using the online intake form on this site.