While donating your eggs to an infertile couple can be a very rewarding experience, it is also fraught with legal questions. Before undertaking such a serious operation, you should be well aware of both your rights, and the rights of the child you may help create.
While it might seem safe and logical to assume that the rules that apply to sperm donation apply equally to egg donation, this is not at all the case. The entire legal field of sperm/egg donation is constantly shifting, with most states having their own special rules covering the process (and some having no mention of it at all!).
In sperm donation, one of the most important factors is whether the donor went through a licensed medical professional, or simply "informally" donated the sperm to the mother or couple.
But in egg donation, it is usually agreed that the intention of the parties is the most important factor, which the court usually discerns from a written contract. For this reason, it is highly advisable for everyone involved to have the parties officially sign a contract , instead of just a waiver of rights. This way, both parties will have an exact understanding on record for the courts. The contract should spell out:
- The circumstances of the egg donation,
- The reasons for it,
- The intent of the donor to relinquish all rights to the baby,
- The compensation for pain, suffering, and medical expenses,
- And, most importantly, who will be the parents of the child.
In the event that the egg donor changes her mine and demands custody, courts will look at the contract to determine the original intention, and that intention will be paramount in its decision.
This is a trickier question, and one where there is no firm, nation-wide answer. In fact, contradictory court rulings about the legal rights of egg donors are emerging all the time, which is why it is very important to consult a skilled family law attorney in your state to find out what laws apply to you. For an example of how great the differences of law are between the states:
- California: While California is generally among the most liberal states regarding egg donation and surrogacy (it fully enforces all contracts drafted about those topics), this cuts both ways. State courts recently denied all parental rights to an egg donor (who was also the lesbian partner of the "gestational mother") because she had signed a contract waiving such rights, even though the court admitted the form was one among many and she probably hadn’t read it or intended to relinquish those rights.
- Pennsylvania: The courts in Pennsylvania have come up with many contradicting decisions, making a judgment on their egg donation policy very hard to determine. In 2005, the courts awarded primary custody to a surrogate mother, despite the fact that she had no genetic relation to the child, and denied custody to both the egg donor and the intended mother (who neither gave birth nor donated any genetic material). But it has since then also ruled in favor of egg donors in several cases.
- Ohio: Ohio courts have ruled very strongly for egg donors rights, allowing them to fight for custody even if they had a valid contract that relinquished all their parental rights.
Careful planning and research is especially necessary in this field, because few states have laws regulating egg donation, and legal judgments about them are hardly consistant. Also, perhaps do to the lingering gender bias in our legal system, there have been almost no cases attempting to force an egg donor to pay child support (despite there being plenty of such cases for sperm donors). This means that there is almost no law to fall back on regarding this, and without good legal advice, you may be vulnerable to such a lawsuit if you donate your eggs.
Prior to signing any kind of contract, you should definately go over it with a knowledgeable family lawyer, so that you know your rights and what is expected of you. Because the courts treat egg donation contracts as the declaration of your intent, it is important that you do not sign anything you don’t understand or agree with, or else a painful custody battle with disastrous results may be the result.