Embryo Disposition Agreements
Surrogacy has become a lifeline for individuals and couples who are unable to conceive naturally, offering them the opportunity to build their families through assisted reproductive technologies. While surrogacy brings hope and joy, it is also fraught with emotional, financial, and legal complexities. Among the many crucial aspects of the surrogacy journey, one of the most important, yet often overlooked, is the Embryo Disposition Agreement (EDA).
Here, we will delve into the essential details of what an EDA is, who needs one, where and when it should be created, and why it plays a critical role in ensuring that the surrogacy process runs smoothly and without any legal headaches.
What is an Embryo Disposition Agreement?
An Embryo Disposition Agreement (EDA) is a legal contract that specifies what will happen to embryos created during the in vitro fertilization (IVF) process in the event that they are not implanted into the surrogate’s uterus. During an IVF cycle, multiple embryos are typically created in the hope that one or more will successfully implant and develop into a pregnancy. However, not all embryos are used. What happens to them must be decided.
That’s where an EDA comes in. An EDA outlines the choices for handling any unused embryos, and it is critical that all parties involved in the surrogacy process agree to its terms before the IVF process begins. Common options that may be specified in an EDA include:
- Storing embryos for future use: Embryos may be stored (or “frozen”) for potential use in the future if the intended parents wish to try again for another pregnancy later on.
- Donating embryos to scientific research: If the embryos are no longer needed, they may be donated to medical research or educational purposes, which can help further advancements in reproductive medicine.
- Embryo Donation: In some cases, unused embryos may be donated to other couples or individuals who are unable to conceive through their own means.
- Destruction or discarding of embryos: If no other options are vialbe or desired by the intended parents, the embryos may be destroyed.
An embryo disposition agreement is not only a medical necessity, but it is also a legally binding document that addresses ethical concerns, potential emotional conflicts, and legal rights over the embryos. The primary goal is to ensure clarity and consensus among all involved parties, minimizing any ambiguity that could lead to future conflicts.
Who Needs an Embryo Disposition Agreement>
Multiple parties play a role in the creation and execution of an embryo disposition agreement. In this section, we will discuss the key stakeholders:
Intended Parents: The intended parents are typically the individuals commissioning the surrogacy process. They are the legal and emotional owners of the embryos and it is their right and responsibility to make decisions about their disposition. Whether they want to store the embryos for future attempts, donate them, or dispose of them, the intended parents must decide the fate of the embryos. It is also important that the intended parents fully understand the implications of these choices, especially in the case of embryo donation or scientific research.
Surrogate Mother: The surrogate mother carries the child through pregnancy, but she does not have legal ownership or parental rights over the embryos. However, her agreement is an important consideration in the EDA process. The surrogate should agree to the disposition options specified by the intended parents to ensure that there is a mutual alignment with the intended parents.
Fertility Clinics: Fertility clinics are where the IVF process takes place and often responsible for storing the embryos after they are created. Clinics require a legally valid embryo disposition agreement before they will proceed with storing or freezing any embryos. Clinics may also have their own policies regarding how long they will store embryos and under what conditions embryos will be discarded or donated. Therefore, it is critical that the EDA aligns with the clinic’s policies to ensure that there is no confusion.
Legal Professionals: A surrogacy attorney with expertise in reproductive law plays a critical role in drafting the embryo disposition agreement. The attorney ensures that the agreement complies with state and federal laws, protects the rights of all parties, and is enforceable in a court of law. Legal counsel is essential for helping the intended parents and surrogate navigate the various legal complexities that come with surrogacy and embryo disposition.
How is an Embryo Disposition Agreement Created?
The embryo disposition agreement is typically created early in the surrogacy process, before the IVF procedure. This ensures that the surrogate and the intended parents are in full agreement about the fate of unused embryos before any embryos are acutally created. The EDA should be drawn up by an experienced surrogacy attorney, but several key players are involved in the process of drafting and finalizing the agreement.
A surrogacy agency will often help intended parents and surrogates navigate the emotional and legal complexities of the surrogacy process. These agencies may provide support in drafting the embryo disposition agreement, helping both the intended parents and the surrogate understand their roles and responsibilities. Agencies play a key role in ensuring that the decision-making process is transparent and that everyone’s concerns are addressed before an IVF procedure begins.
A fertility clinic may not be directly involved in drafting the agreement, but will typically require a copy of the EDA before beginning IVF procedures. Clinics may have their own requirements and forms that need to be filled out, but the embryo disposition agreement itself is usually created in collaboration with the clinic, intended parents, and surrogate.
While surrogacy agencies and fertility clinics can provide some guidance, an attorney with experience in reproductive law is typically the one who drafts the embryo disposition agreement. This ensures that the agreement is legally binding and complies with the legal requirements of the state where the surrogacy is taking place. Attorneys help tailor the EDA to the specific circumstances of the surrogacy arrangement.
Depending on where the surrogacy is taking place, the local legal landscape may dictate specific rules about embryo disposition. Some states have more stringent regulations regarding reproductive rights and embryo storage, so the EDA must comply with these regulations. For instance, some states may require written consent from both the surrogate and the intended parents for any embryo donation, while others may have policies regarding embryo storage durations.
When Should an Embryo Disposition Agreement Be Created
The timing of the embryo disposition agreement is crucial for ensuring that all parties are on the same page before any medical procedures are undertaken. While the exact timing can vary depending on the circumstances, it is generally advisable to create the agreement prior to any IVF procedures, in tandem with the drafting of the surrogacy agreement, during pre-treatment counseling.
Before IVF, it is essential to have the embryo disposition agreement finalized. Creating the agreement at this early stage ensures that there is full agreement on the handling of embryos from the outset. This step is particularly important since IVF often results in the creation of multiple embryos, and the intended parents and surrogate need to agree on what will happen to the unused embryos in advance.
At the start of drafting the surrogacy agreement, the EDA should be established. Thile surrogacy agreement focuses on the relationship between the surrogate and the intended parents, the EDA specifies what happens to the embryos in the event that there are leftover embryos after a successful implantation in the surrogate’s uterus. As previously mentioned, it is a good idea to have the EDA terms finalized when selecting your surrogate, as it is important to find a surrogate that is aligned with your beliefs.
During pre-treatment counseling, parties will often be able to discuss embryo disposition and their desired terms for an EDA, prior to meeting with a legal team. This will help them to weed through their emotions and find the most ideal terms that both intended parents (if there are two) can agree upon.
If the intended parents have a change in circumstance at any point in the surrogacy process, the terms of the embryo disposition agreement may need to be revisited. An example of a situation which may result in a change of circumstance necessitating a modification of the EDA are a sudden change in family dynamics, a revelation of an unforeseen medical issue, or a change in heart regarding the terms of the EDA. It is important that the finalized EDA reflects the current situation and desires of all parites.
Why is an Embryo Disposition Agreement Important?
The creation of a comprehensive and legally enforceable embryo disposition agreement serves several critical functions i the surrogacy process.
Legal Clarity and Protection: By addressing the issue of unused embryos in advance, the EDA helps protect the legal rights of the intended parents, the surrogate, and any other involved parties. It provides clairty regrading ownership of the embryos and prevents potential legal disputes that could arise if the embryos were to be used or discarded without clear consent.
Emotional and Ethical Considerations: Decisions about unused embryos are often fraught with ethical and emotional considerations. Some intended parents may wish to preserve embryos for future use, while others may prefer to donate them to research or another couple. Similarly, surrogates may have strong feelings about the fate of the embryos. An EDA ensures that all parties are in alignment regarding these difficult decisions.
Preventing Disputes: Without a clear EDA, disputes may arise down the line. For instance, if a surrogate changes her mind about how the embryos should be used or if intended parents disagree on what to do with embryos after a failed IVF cycle, legal disputes could ensue. The EDA helps prevent such disagreements by establishing clear terms that all parties have agreed upon in advance.
Complying with Legal and Ethical Standards: State laws on embryo disposition vary widely, and some jurisdictions have specific requirements about embryo donation or destruction. By creating an EDA, intended parents and surrogates can ensure compliance with relevant laws, avoiding potential legal pitfalls.
Embodying the Family’s Wishes: Above all, the embryo disposition agreement is an essential tool for ensuring that the intended parents’ wishes are respected while also taking into consideration the surrogate’s moral and ethical stance. This alignment helps to ensure that the surrogacy process is carried out with respect and consideration for all parties involved.
Why You Need a Fertility Lawyer
An embryo disposition agreement is a crucial component of the surrogacy process, helping to address important questions about the fate of unused embryos created during IVF. By establishing a legally binding document that outlines the desired disposition options, all parties involved can avoid future disputes and ensure their rights and wishes are respected.
For intended parents, surrogates, and fertility clinics, the creation of an embryo disposition agreement should be an early and thoughtful step in the surrogacy process, ideally coordinated by experienced surrogacy attorneys. By approaching this sensitive matter with care and foresight, all involved can navigate the surrogacy process with greater peace of mind and confidence.
