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).