What Happens When You No Longer Want the Biological Materials of Fertility? Custody, Use, and Donation of Eggs, Sperm, or Embryos

April 27, 2016

Assisted reproductive technologies (ART) help infertile couples and others create families when they cannot do so on their own. These technologies can involve the use of donated eggs, sperm, or embryos, which are typically frozen until they are used.



With as many as five people potentially involved in the assisted reproductive process: an egg donor, a sperm donor, a surrogate mother, and one or two legal parents for the child. Conflicts can arise regarding the custody and future use of this genetic material.


Sperm Donations Laws

Nearly all states have laws regarding the use of sperm donations. Typically, these donations are used by a married woman for insemination. The woman's husband is required to consent to use of the donated sperm in order for him to be considered the legal father of the child. Most state laws also provide that any use of the donated sperm for insemination does not make the sperm donor the legal father.


Egg Donations Laws

Only a few states have laws regarding egg donations, and these statutes vary significantly. In California, the law addresses only the information that must be given to a donor and the form of the donor's consent before any procedure is used to retrieve the eggs. Florida law requires that couples prepare a written agreement that provides for disposition of donated eggs in the event of death, divorce, or other unforeseen circumstances.


Maryland law requires written consent to use donated eggs in private research and prohibits using donated eggs for state-funded research. Other states with laws that apply to egg donations include Colorado, Connecticut, Louisiana, Massachusetts, New York, and Wyoming.


Embryo Donations and Adoption

Couples using assisted reproductive technologies typically create embryos which are frozen for future use. Once the couples have achieved their desired family size, decisions must be made on what to do with the remaining frozen embryos. Some couples choose to donate the embryos to an infertile couple, preferring adoption to donating the embryos to research or allowing them to die.


However, donating embryos is an unsettled area of law without any federal or state statutes specifically governing the practice. For that reason, an important part of embryo donation is a written contract between the couples clearly stating their desires for use of the frozen embryos.


Disputes Regarding Frozen Embryos

As part of the assisted reproductive process, a couple should prepare a written advance directive stating how any excess frozen embryos will be handled. Without such an advance directive, a court will use its own discretion to decide the fate of the frozen embryos in the event of a dispute, and this may lead to an outcome different from what the couple would have intended.


An advance directive does not guarantee that a future dispute won't arise, but state courts considering challenges to these writings have generally considered advance directives enforceable.



Article provided by Lawyers.com


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