Embryo donation can be a great option for those who cannot (or choose not to) conceive using their own gametes. When you obtain a donated embryo, you avoid the time and expense associated with obtaining donor gametes (eggs and/or sperm) and undergoing either the insemination or IVF process. Typically, the embryos are donated by couples who have “left over” embryos after completing their family and do not feel comfortable destroying them. During the embryo donation process you should have the opportunity to obtain information as to the quality of the embryos, biographical information on the donors and on the health of any children already born from the same gametes.
There are several ways for obtaining embryos available and suitable for donation. Some embryos are donated through embryo donation programs without the donors and intended parents having direct communication with one another. Other times, the embryo donor(s) and embryo recipient(s) deal directly with one another and they have the opportunity to enter into a formal agreement setting forth their expectations as to confidentiality and their willingness to share medical information with one another during the child’s minority. In most embryo donation agreements, ownership of the embryos is legally transferred to the embryo recipient(s) once the agreement is signed by all parties. Once that occurs, the recipient(s) have decision-making authority over the embryos and can use them to become pregnant with a child who will be their legal child.
Embryo donation agreements should address the following:
As members of the Academy of Adoption and Assisted Reproduction Attorneys we have demonstrated expertise in this field and are among the small group of legal professionals in New York and New Jersey with the experience required to make your contract process as easy and smooth as possible. Feel free to call us at 914-779-1050 or complete our online form if you’d like to speak with us about the embryo donation process.
If you are a same-sex couple in New York who conceived a child through assisted reproduction, you have the option of obtaining either an Order of Adoption (see discussion here) or a Judgment of Parentage. The benefits of the Judgment of Parentage process is that it’s much less intrusive, faster and cheaper than the adoption process. There’s no need for you to provide the court with a homestudy, for you to undergo criminal or child abuse clearances or for you to provide the other documentation required in a typical adoption proceeding. In a Judgment of Parentage proceeding, the only issue before the court is whether the intended parents jointly conceived the child using gametes provided by a donor.
When the intended parents are married, both will be named as the child’s parents on the birth certificate. However, it’s important to know that being married to the child’s mother, and/or named as a parent on your child’s birth certificate, may not fully protect your legal relationship to your child in the event of a challenge outside of New York or New Jersey. That’s because many states don’t apply the marital presumption of parentage in a gender-neutral fashion to same-sex married couples. However, because of the “Full Faith and Credit Clause’ of the United States Constitution, obtaining a court order, declaring both of you to be “parents” should ensure that your parental relationship to your child will be recognized throughout the United States.
While we understand that having to undergo a legal proceeding to secure your parental rights may seem like an unnecessary cost and inconvenience, particularly at a time when you simply want to enjoy your child, there is little doubt that the benefits to be derived are worth it.
In both New York and New Jersey, the spouse of the person giving birth to a child conceived through donor sperm/embryos has the right to be named a parent on the child’s birth certificate. New Yorkers also have the right to sign a Voluntary Acknowledgement of Parentage (AOP) form at the hospital regardless of whether they’re married to the parent who gave birth. Signing the AOP form at the hospital will serve to secure your legal relationship to your child. However, because there are a number of grounds upon which the validity of an AOP can be challenged, it’s still a good idea for intended parents to also obtain either an Order of Adoption or a Judgment of Parentage. Nevertheless, the ability to sign an AOP will protect the large numbers of families lacking financial resources or the forethought to petition the court for a judgment of parentage or adoption.
