2011 Problem

Problem Presented for Essay Response
2011 Embryo Law Writing Competition

You have been consulted by a non-profit organization that matches prospective donors of frozen human embryos with prospective recipients of those embryos. The purpose of the program is to allow families who have completed their fertility treatments to donate their remaining embryos to other couples who wish to have the embryos transferred for their own family building. (Note: The term “transfer” as used herein, refers to the medical procedure of inserting human embryos into a woman’s womb with the goal of her achieving a pregnancy.)

The organization has an agreement that it would like to use as a standard draft which the donor and recipient couples can review with their own attorneys and make changes as they may require. Although the couples will be encouraged to seek independent legal counsel, they realize that many couples (and their attorneys) may rely on the draft language in the agreement being enforceable.

There are three provisions in the agreement that the matching organization would particularly like you to review.

  1. “By signing this agreement, donors hereby agree to forever relinquish and terminate any legal or parental rights they may have to the embryos which are the subject of this agreement.”
  2. “Recipient couple agrees that all embryos which survive the thawing process shall be transferred into the recipient mother.”
  3. “Since damages would be difficult, if not impossible, to assess in the event that either party breaches this agreement, the parties hereto agree that liquidated damages in the amount of $25,000 is a reasonable sum to be assessed to either party who breaches this agreement.”

Please discuss the enforceability of all three clauses of the agreement. In terms of the liquidated damages clause, discuss whether the court would make an award of $25,000 if (a) the donating couple filed an action to regain custody and legal rights to the embryos or (b) if the recipient family did not transfer all thawed embryos which were viable into the recipient mother, but allowed one or more to be destroyed.

Consider whether any of the clauses might be void as against public policy. Look to all jurisdictions for instructive authority.