People who undergo IVF treatment or are looking at using a surrogate/gestational carrier to form a family are faced with many medical and legal documents. It is important to understand the difference between signing a medical clinic consent form and entering into a legal contract to donate sperm, eggs (ovum), or embryos.
What is the difference between a donor contract and informed consent in the context of IVF treatment or surrogacy?
If you are looking at using an egg, sperm, or embryo donor for IVF treatment or surrogacy, you may have heard the terms “informed consent” and “donor contract” used. While they may sound similar, they are two different things. Informed consent is a process where you are given information about the treatment you will receive, including the risks and benefits. The clinic will ask you to sign a form to show that you understand the information and agree to the treatment. Informed consent is a critical step to ensure that you are fully aware of what you are getting into and have permission for the treatment.
An example would be that anytime your doctor has performed surgery on you, they have gone over the potential risks of surgery, which always includes the risk of death. Quoting “death” seems dramatic, but your doctor is legally obliged to describe all possible risks, which is a risk anytime they cut into your body. In IVF treatments, the risk of having your eggs retrieved is many but includes things like over stimulation of your ovaries, causing a long list of potential medical implications. In summary, Informed consent ensures that you are fully aware of the treatment you will receive.
On the other hand, a donor contract is a legal agreement between you and the sperm, egg, or embryo donor but not between you and the medical clinic. This contract outlines the donation terms, including financial compensation for the donation (by the way, you can not compensate for an embryo donation), anonymity (between the parties), and any potential future contact between the donors and the recipients. The donor contract is crucial if you are using donor eggs or sperm, as it ensures that both parties know the plan and expectations of them.
Informed consent and donor contracts are essential in the IVF process. While an informed consent form ensures you are fully aware of the treatment you will receive, a donor contract ensures both parties know the terms they will abide by between themselves. The IVF or fertility clinic is not a party to the donor contract.
Why is it essential to have a separate donor agreement and informed consent form?
A clinic should not combine a consent form with your donor agreement into one document. Parties need to have a separate donor agreement. It is also important to remember that your doctor is not a lawyer. Your doctor cannot ensure that your legal rights are protected and that your parentage will not be put at risk in the eyes of the law. Even if the parties remain anonymous (it is not recommended to be anonymous), it is important to have a separate donor agreement between the donors and the recipients. Technically, a fertility clinic cannot give legal advice.
What to do if you have problems with your donor agreement or informed consent form?
If your clinic did draft your donor agreement or combine it into a consent form, and that contract is now undergoing scrutiny as legally insufficient, you should consult a personal injury lawyer to determine if the clinic has committed malpractice, negligence, or even unlawful practice of law. Many personal injury attorneys offer a free consultation appointment. In addition, you need to reach out to a family law attorney who is experienced in negotiating donor agreements to resolve your problems with the contract. You should also stand up to your clinic and insist on a donor agreement if one is not being offered to you. If you are suspicious of your rights or they need to be clarified in the forms you are signing, then you need legal advice from an attorney experienced in assisted reproduction law and surrogacy.
If you are starting your IVF or surrogacy journey and need a donor, contact a law firm such as Surratt Law Practice that does Assisted Reproduction law. A firm well-versed in assisted reproduction law can help you create a donor agreement customized for your needs and protect your parental or donor rights.