How To Donate Embryos After IVF: Embryo Donation Agreements

By Melissa Salfi, Vancouver Fertility Lawyer, Vancouver Family Lawyer

After going through in vitro fertilization (IVF) treatment, a couple may have leftover embryos that are cryopreserved (frozen and stored) which can be used for further IVF treatments. If the couple no longer requires the unused embryos, they can be donated to help others struggling with infertility to start a family of their own. While embryo donation is legal in Canada, it is illegal to buy and sell embryos according to the Assisted Human Reproduction Act.

Embryo donation after IVF is a beautiful gift to a family struggling with infertility. However, it involves considerable legal implications. It is very important that the donor or donors and the couple receiving the embryos have a contract in place prior to the transfer of any embryos, and that each person to the contact obtain independent legal advice from a lawyer specializing in fertility law. In fact, most fertility clinics in Canada require that such a contract be in place before they will execute the physical transfer of the embryos.

This contract is called an Embryo Donation Agreement. The parties entering into the contract are the embryo donors (those who created the embryos in IVF) and the embryo recipients (who are the “intended parents” of the child). In some cases, a surrogate may also carry the donated embryo and this could require an additional surrogacy agreement.

The Embryo Donation Agreement sets out the intentions of the donors and the couple dealing with infertility with respect to any children born out of the donated embryos. This includes parentage and guardianship rights, any future contact between the embryo donors and the child, financial support of the child, medical disclosure, confidentiality, and other issues.

The Embryo Donation Agreement contains strong language that the embryo donors are not the parents of the child, that they will have no guardianship or decision-making authority, and no rights to seek parenting time with the child. The agreement also protects the embryo donors from having any obligations to financially support the child by preventing the embryo recipients from seeking financial contributions such as child support.

However, there is also some flexibility allowed in a Embryo Donation Agreement. While the agreement makes it clear that the embryo recipients are the parents and guardians of the child, the agreement can be customized to allow for any desired contact between the embryo donors and the child. The agreement can also allow for contact between other children that the donors may have and the child of the donated embryo.

Given that the donors’ and recipients’ children will be genetic siblings, the contract should address the issue of prohibiting any marriage between the siblings by including clauses that require the parents to inform their children of each other in such circumstances, as well as to provide disclosure of any future donations of genetic material they make to a third party.
The Embryo Donation Agreement should also set out what if any genetic testing or screening has been undertaken and what medical history has been disclosed. The agreement will contain a medical waiver in which the embryo recipients assume all risk that any child(ren) from the embryos may be born with illness, disfigurement or other medical issues, and that they accept that a viable embryo and pregnancy cannot be guaranteed. It is important for the heath and well being of all that there also be continued reciprocal disclosure obligations of any medical conditions.

These agreements are often tailored to reflect the parties’ specific wishes and relationship with each other, as well as to account for changes in the rapidly evolving area of fertility law (e.g. see the new regulations that came into effect on June 9, 2020: Reimbursement Related to Assisted Human Reproduction Regulations

The fertility lawyers at Crossroads Law understand that embryo donation after IVF is a major life decision. We are committed to listening to you during this process, guiding you through the legal issues, and drafting a comprehensive agreement that protects your privacy and wishes. Contact us now for your free consultation.

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.