Embryo Donation

Often, Intended Parents who go through a cycle of invitro fertilization to create embryos for their own use to produce a pregnancy, have remaining embryos that they no longer need for their own use. They must either decide to discard the remaining frozen embryos, or donate them for medical research. A third alternative has become increasing available to couples that of embryo donation. In this case, couples donate their unused frozen embryos to another couple who have no embryos of their own for implantation.

Some people mistakenly refer to the process as ”Embryo Adoption”, but it is important to characterize the process as ”Embryo Donation”. Otherwise, the adoption laws of the state would apply and the couple/person receiving the embryos would be subjected to home visits, and a waiting period after the birth. In addition parental rights in an adoption cannot be transferred before the child is born.

With Embryo Donation, the rights are transferred at the time of the embryo transfer. Few states have statutes addressing Embryo Donation. California has no statute, so we look to the laws on Egg Donation and Organ Donation. If an Embryo Donation Agreement is carefully drafted it will show the express intent of the parties and will serve as a road map for the courts in determining the respective rights of the parties.

It is important to have a legal contract in place that clearly states the intent to transfer all rights and responsibilities of any child(ren) born from the embryo to the recipients of the embryo. It is against the law to charge a fee for the embryo, however, the expenses of donating the embryo are paid by the recipients. Separate legal representation of the donors and the recipients is essential to protect the rights of all parties involved.


I currently practice almost exclusively in family formation law and have over 20 years of experience. I will personally and promptly handle your cases from start to finish. I will be available to consult with you and answer your questions regarding embryo donation and the law throughout the process. I will draft your Embryo Donation Agreement and surrogate agreement if a gestational carrier is going to carry the embryos. If a Gestational Carrier is used I will file and draft the documents to obtain a pre-birth order stating that the recipients are the legal parents of any child born from the donated embryo and carried by a surrogate. If you do not use a surrogate to carry the child, then you will only need the Embryo Donation Agreement.


  1. Future Communications
    • Do you want to be able to contact the donors in the event of medical necessity (re need
      for bone marrow of genetic parents; discovery of genetic disease running in family)
    • If siblings are curious and want to meet each other do you provide for this?
    • Do you want to receive photos, letters, any physical contact?
    • Do you want a confidential intermediary (like the medical program) to handle any future communications to maintain anonymity?
    • Do you want to have confirmation of the birth?.
  2. Disposition of Excess Embryos
    • Do you want to transfer all unused embryos and if so what do you do with those embryos
      recipient couple does not use?
  3. Consent of Egg Donor
    • Did the original Egg Donor give her written consent to donating couple to give unused
      embryos to another couple? If not, must get her written consent.
  4. Is it okay with donors if the embryo is carried by a Gestational Carrier?
  5. Is the Donor anonymous or known?
  6. Confidentiality
    • Do you want to keep the agreement confidential between parties
    • Whom can you tell and can you divulge names
    • Will the child(ren) be told and if so how and by whom and will Donor or recipient be notified?
    • How will you maintain the confidentiality?
  7. Reimbursement of Expenses of Donors
    • Costs of Storage and Transporting Embryos
    • Costs of Donor Medical Screening
    • Costs of Psychological Screening of Donors
    • Costs of Donors Legal Fees
  8. Relinquishment of Parental Rights and Responsibilities
    • Is there a clear relinquishment of rights by Embryo Donors and a clear acceptance of parental responsibilities by Recipient in the contract?
  9. Release of Liability
    • Is there a clear release of liability of the donor for any harm that may result from any adverse consequences resulting from the donation?

Please call or contact me at tdlaw1@aol.com for a free consultation regarding your embryo donation today.