Egg Donation and Surrogacy

Northeast Assisted Fertility Group to be Featured on CNN’s “Anderson Cooper 360” Next Week – Story on Egg Donation

<Click to watch the CNN video, “Egg Donors on the Rise”>

Now CNN has picked up on the “surge” in egg donation and they invited Sanford and me to participate in the story. They were especially interested in speaking with an egg donor who was motivated by the current economic downturn. A few of our fabulous donors agreed to participate in the story; they chose one who was sufficiently motivated by money.

Randi Kaye and her team came to our office today and were very professional. Ms. Kaye asked me questions about the relationship between the economy and the number of egg donation applicants we receive, and I agreed that there was an increase. She did veer into sensationalism on occasion:

“Just HOW desperate are these donors?”

“How do you respond to people who say this is baby selling?”

“How do you respond to the term ‘debt donors’?”

[Desperation is not a desirable quality in an egg donor. The American Society for Reproductive Medicine endorses compensation for egg donation as ethical (I handed them the ASRM position paper) and no one claims egg donation is baby selling. I never heard the term “debt donor.” My response to that one was “Huh?”: I trust they will edited that one out, and “debt donor” doesn’t catch on.]

In each case, I attempted to get back on track to the real story: infertility is a disease, and egg donation is a very effective treatment. Egg donors are paid for their time and effort, and recipients get the chance to have a baby. If the egg donor compensation is not coercive, then all parties benefit with little medical or financial risk.

They plan to air the story next week; I‘ll post the date as soon as it’s confirmed.

“Ova Time: Women Line Up To Donate Eggs – For Money”

Melinda Beck’s piece in today’s Wall Street Journal was overall accurate. It even acknowledged the cost for the recipient side.

It also acknowledges the ASRM’s limit on compensation and mentions one donor agency that ignores it, since “the offer brings in donors who might not otherwise be interested.” But that is just the point of the limit; a compensation of $50,000 can be unduly coercive. Furthermore, since any legitimate clinic is a member of the ASRM and therefore pledges to abide by its guidelines, what clinic would agree to work with these donors? These exorbitant fees depend on ethical breaches by more than just the agency, but the doctor as well.

The ASRM’s compensation limit was set in 2000, and reiterated in 2007 but not updated. I think the changing times require an update to $12,000 or more. But until it is official, in our egg donation program we will keep our compensation at $10,000. It is worth it to keep our ethical standards.

In Beyond Compensation:  Egg Donor Expenses and Financial Liability (2 of 3), we listed a few reasons why we do not support penalty clauses in egg donor contracts.  Here are a few more.

Penalty clauses in egg donor contracts are unduly coercive.

Although unenforceable, they do serve a psychological purpose: coerce the donor into compliance.  Reasonable compensation already serves as an incentive; no additional one is needed. Furthermore, by the time the egg donor has come to the contract stage, she has already demonstrated her compliance by showing up to all her screening appointments and following all the instructions of the medical staff, for which she has received no compensation at all.

The ASRM places caps on egg donor compensation in order to avoid undue coercion; threat of severe financial penalty is just as coercive as enticement through exorbitant compensation.

Penalty clauses in egg donor contracts undermine good will.

Contractually threatening to sue your egg donor can only sour the donor’s attitude toward you and the altruistic motives that compelled her to donate eggs in the first place.

An egg donor contract is unlike any other legal document: it is a statement of intentions and good will between two parties in a unique relationship. Recipients should honor and respect their donor, and express gratitude for her efforts to help them conceive. In turn, the egg donor will follow her medical instructions in the hopes that the donation will be successful. Most egg donation procedures indeed follow this sensible formula.

However, treat your donor like a potential enemy, and you risk turning her into one.

Katherine Benardo is Director of the Egg Donation Program at the Northeast Assisted Fertility Group (NAFG).  Located in New York and Boston, NAFG is committed to creating happy, loving families through gestational surrogacy and egg donation.

In Beyond Compensation:  Egg Donor Expenses and Financial Liability (1 of 3), we claimed to stand against penalty clauses in egg donor contracts. Here is why.

Penalty clauses in egg donor contracts are unfair.

The penalty, if enforced, could well add up to thousands of dollars, which the egg donor very likely does not have. Should she take the chance to make $10K, but in case of an unexpected turn of events, get no money at all but instead have to pay thousands to someone else?  It is not a risk any attorney would advise a client to take. The donor is already putting herself at a medical risk; she should not have to put herself at a financial risk, too.

Penalty clauses in this type of “personal services” contract will probably be held unenforceable.

A judge would be hard-pressed to assess a money damage award against a woman who did not allow her donor eggs to be harvested, absent a showing of fraudulent intent.

The penalty for backing out is that the egg donor does not get paid: the deal is that you take a reasonable risk with your money; the donor takes a reasonable risk with her body. It’s not like you are purchasing a piece of property. We have never encountered a case of a recipient recovering expenses and damages from an egg donor who did not fulfill her obligations. In fact, the opposite is more likely: the recipients back out, and the donor is left with no compensation for her efforts and no recourse for recovery.

[If it makes the recipients feel better, we would accept a clause that asks the egg donor to “refund” any money received from the recipients, should she not follow through for an unjustifiable reason. But since a donor in our egg donation program accepts no money before the retrieval occurs, there is no money to refund.]

Although they are probably unenforceable in this context, we still think penalty clauses in egg donation contracts are harmful.

To be continued in Beyond Compensation:  Egg Donor Expenses and Financial Liability (3 of 3).

Apart from egg donor compensation (at a limit of $10,000 for her time and effort, according to the ASRM), our egg donors are entitled to reimbursement for other expenses incurred by the process. For local donors, these can include gas, tolls, parking, and lost wages for the retrieval day (which requires a full day off from work). For out out-of- town egg donors, expenses include travel, hotel, per diem cash (NAFG’s egg donation program offers $75 per day), lost wages, as well as travel, hotel and per diem expenses for a companion.  Although we appreciate the financial sacrifice that recipients make for fertility treatment, we discourage our clients from nickel and diming here: yes, your donor is getting paid for her efforts, but she is doing you a great service, and for that, she should be in a comfortable hotel, have money for food, and not be penalized for losing work. As an agency, we work hard to find reasonable rates for flights and hotels, but egg donor safety and comfort is our primary concern. An estimated expense budget is specified in the contract, so all agree on its amount and scope ahead of time.

According to our policy, the donor only receives her compensation if the retrieval takes place. If, for any reason, the egg donation cycle is not completed, the donor does not get paid. (Some agencies pay the fee in increments along various stages in the process, but we do not.) She cannot be held responsible for the recipients’ expenses for any of her travel or medical care (except in a hypothetical case of willful fraud on the donor’s part). We have never had a case so far of an egg donor backing out of a cycle once the medications have started (she is, after all, just days away from her retrieval: aside from a medical or other unforeseen disaster, why would she back out after she has come so far?), but we have encountered recipients eager to protect themselves from this unlikely occurrence.  To this end, a minority of assisted reproduction attorneys include severe penalty clauses in their contracts, claiming that if the donor backs out for “unreasonable” (but unspecified) reasons, she is responsible for paying for her expenses, plus any money spent on medical care and medications related to the egg donation cycle for both parties from the start (although we never had an attorney willing to specify exactly what this amount would be).  We at NAFG stand firmly against such penalty clauses in egg donor contracts, for many reasons.

To be continued in Beyond Compensation:  Egg Donor Expenses and Financial Liability (2 of 3).

What happens to donor eggs after they are retrieved? Do I get to know the results? Do I meet the recipients or potential offspring?

After the donor egg retrieval, the eggs are fertilized and then observed for a few days. Not all will fertilize or develop. Between one and three embryos will be transferred to the recipient. If any viable embryos are left over, they will be frozen (embryos hold up better in the freezing process than eggs do). It takes about six weeks to find out if a pregnancy results.

The majority of egg donor cycles in the US at this time are mutually anonymous: the donor egg recipients and the egg donor may know general information about each other, but they do not know each other’s names and they never meet. If working in a mutually anonymous arrangement, you may be informed of the number of donor eggs retrieved, but not the number actually fertilized or whether a pregnancy or live birth resulted. If you are working non-anonymously, you may get more information, depending on the arrangement. Some donors meet their recipients with the supervision of a social worker, and leave the opportunity open to meet any potential offspring. Both parties agree to the anonymity level before the match is made.

Will egg donation affect my future fertility?

No relationship between egg donation and future fertility has been clearly established, although research is continuing.

Egg donation does not deplete your ovarian reserve. Each month you release a number of eggs, but only one comes to maturity, generally. The hormones administered in the egg donation process stimulate more than one to reach maturity. Women in their 20s have hundreds of thousands of viable eggs, although the number diminishes over time.

What are the costs involved for me and do I need medical insurance?

You are not responsible for any medical costs and any long distance travel expenses will be paid by the recipients.

A special egg donor insurance policy will be purchased for you to cover any complications, whether you have your own insurance or not.

How are egg donors matched with recipients at your agency?

At this current stage in technology, donor eggs are not frozen for later use. So a specific recipient has to choose you before you can donate.

When working with our egg donation agency, a recipient will select you from the donor database, and only then will you begin your medical screening. You may work with a local clinic or one in a different city, if that is convenient for you.

Before you start your medications, you will be presented with an egg donor contract and provided an attorney to review its terms with you (the clinic will present you with a consent form as well).

Thinking about being an egg donor and want to learn more about it?

I recently posted an article on INCIID (the InterNational Council on Infertility Information Dissemination) which provides answers to your questions, including:

• full description of the medical procedures, risks, and side effects
• how much time egg donation takes
• how much egg donors get paid
• donor eligibility requirements
• all other logistics

Egg donation helps thousands of people each year realize their families, and it relies on the generosity and dedication of healthy, vibrant, and intelligent young women. It is important for each egg donor candidate to be fully informed: click here to learn if egg donation is right for you: “Top 10 Questions Egg Donors Ask,” by Kathy Benardo.