The Birds and the Bees…and the Egg Donor and the Agency?

With the advent of emerging technologies come new ways to start a family. Infertile couples and individuals now have a variety of options to become parents, from egg and sperm donation to surrogacy and embryo preservation. Such technologies are a dream come true for those who want children but cannot conceive. The law, however, is struggling to keep up with the changing times. A legal system built on the idea that a child has a mother and a father must now reconcile the roles and responsibilities of a child’s intended mother, intended father, sperm donor, egg donor, gestational carrier, donor agency, and hospital.

Egg donation, in particular, poses unique challenges due to the involvement required on the part of the donor. The egg donation process involves several key players: (1) the donor – who agrees to undergo medical procedures to remove her eggs and donate them to the intended mother, (2) the intended mother – who likewise undergoes medical procedures to prepare her body for implantation of the donated eggs, (3) an agency – which, in some cases, connects intended parents with a donor and preserves donor anonymity by coordinating payment to the donor and communication between the intended parents and the donor, and (4) an in vitro fertilization (IVF) clinic – which manages treatment of the intended mother and the donor. The duties of each of these key players can be set out in a contract. For instance, the intended parents may enter into an agreement with an agency and, as is the trend, enter into a separate agreement with the donor they select. But what happens when something goes wrong? What happens if the donor does not follow medical advice? What if, as a result of her failure to follow medical advice, the donor cannot donate her eggs to the intended mother? Traditionally, the law would enter at this juncture to right the wrongs; but is it ready to in this uncharted territory?

With respect to egg donation, Massachusetts, like many states, is the “wild west.” There is currently no statutory or case law in Massachusetts governing egg donation. While the dominating concern of practitioners in this area is parental rights and responsibility for the ultimately born child, little attention has been paid to the scenario presented above. In the absence of any egg donation law, we must make use of the laws we have. This may mean applying traditional contract law to this unique and novel predicament. Agencies often present contracts to intended parents that hold the agency harmless if anything goes wrong. As agencies are often unwilling to change these contracts, the intended parents must choose to either accept what the agency gives them or look elsewhere for help starting their family. High pressure, one-sided contract negotiation is nothing new. The law allows parties harmed by such contracts to recover even when the language of the contract eliminates the dominant party’s liability. Massachusetts provides additional protection in Massachusetts General Laws Chapter 93A, which prohibits unfair and deceptive practices in business. Using these laws, intended parents may be able to get what they deserve from an egg donation agency when the agreed-to procedures are not followed. Unless and until Massachusetts adopts laws protecting egg donation, we must rely on our traditional legal tools to solve legal problems arising in these unchartered waters.

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