Service Agreements and Fund Management
In the case of any third party reproduction, including egg donation, sperm donation, and embryo donation, a service agreement is a necessary part of the legal process. These written agreements between the intended parents and the donors and/or surrogate state and explain the rights of each party throughout the processes of donation, pregnancy, and the child’s life. Each assisted reproductive technology has its own applicable agreement, and these agreements should only be executed after in-depth (and sometimes multiple) conversations between the parties and their own separate attorney regarding the agreement’s terms.
The Egg Donation Agreement states the donor’s and the intended parents’ rights and legal responsibilities. It should make clear that the donor is rescinding all legal rights to make decisions about the donated gametes, ensuing embryos that might be created, and any children that might result from the use of donated gametes.
The Sperm Donation Agreement is similar to an egg donation agreement, outlining each party’s rights and responsibilities. Most importantly, this service agreement states that the sperm donor gives up all parental rights and obligations.
The Embryo Donation Agreement outlines many important questions surrounding the ownership of the embryos before in vitro fertilization (restrictions from underlying egg/sperm donor agreements, etc.) and any embryos that may remain. The agreement also defines the rights of the recipient parent(s), the release of liability for the donor family, and agreed upon confidentiality rules. Many times, these agreements will also address the number of embryos being donated.
The Surrogacy Agreement addresses a myriad of topics ranging health and life insurance to delivery room etiquette. Most essentially, it will state that the surrogate and her husband (if applicable) will have no claim to custody after the birth of the child and that they will assist in terminating any presumed parental rights. The agreement additionally outlines any applicable compensation and the financial terms of the costs associated with the pregnancy.
If the intended parents are using a known, donation from a friend or family member, service agreements might reflect alternative wishes of those involved.
Some fertility clinics, egg donor agencies, and sperm banks attempt to draft these service agreements for their clients to use. This presents several potential problems, the least of which is the inherent conflict of interest presented by these organizations’ serving both the donor/surrogate and intended parents. The other major issue is that using an agreement not drafted by a non-attorney elicits the question of whether the drafter has a baseline understanding of the intricacies of drafting proper legal documents. Signing any of the above service agreements without consulting an attorney is highly inadvisable. The most prudent route for anyone embarking on the journey of assisted reproduction is to start with their own attorney and to be sure that their attorney drafts the service agreements. Regardless of who drafts the service agreement, it is vital that an attorney reviews the agreement with their client (either donor/surrogate or intended parent) before any treatments begin. They can ensure that all language is clear and comprehensive and that any discrepancies in the law between different states or jurisdictions are accounted for in the service agreement document. An attorney can also negotiate on behalf of their client with the other party’s legal representation in the case of difference in opinion or miscommunication. These issues should be sorted out as early in the process as possible so that each party’s intention is clearly stated at the time of donation.
In 2010, California bill 2426 was signed into law, specifying how funds for surrogacy and egg donation must be managed in the state. California Family Code Section 7961 now requires that client funds for these types of assisted reproduction must be deposited into one of two specific accounts:
(1) An independent, bonded escrow depository maintained by a licensed, independent, bonded escrow company.
(2) A trust account maintained by an attorney.
The surrogacy or fertility treatment facility should inform clients about their two options and direct them to deposit funds there for retrieval during the fertility process.
At Pinnacle Law Firm, we manage client-trust accounts for individuals or couples going through the process of third party reproduction. These accounts can help protect individuals and couples using assisted reproductive technology by securing their financial investments in the process and assuring that money will be directed toward appropriate services in a timely manner.
Client-trust accounts held by attorneys are regulated by the California State Bar, to which each attorney is accountable. In addition, the California State Bar has created the Client Security Fund, which protects clients against financial losses from dishonest conduct. Law firms have no financial interest in holding accounts for clients; no interest earned off the account may be appropriated by an attorney. For more information on financial procedures surrounding surrogacy and donation, consult with attorney Corlandos Scott today by calling Pinnacle Law Firm at (818) 483-0424 today or contact us online.