Problem Presented for Essay Response

Mrs. Jones and her husband received five frozen embryos from her cousin, Mr. Peterson and his wife, who had successfully achieved pregnancy through IVF treatment. No money was exchanged between the Jones and the Petersons, however a written donation document was executed. Upon thawing of the five embryos, three of the embryos were viable and implanted in Mrs. Jones by a licensed fertility clinic. Mrs. Jones’ is six months pregnant with a single baby as a result of the successful implantation.

The embryos had been created using donated eggs and Mr. Peterson's sperm. The egg donor was anonymous, but had provided a health history that was given to the Petersons when they signed the egg donor agreement 3 and 1/2 years ago. The Petersons have never had contact with the egg donor. The agreement was arranged by an egg donation facility that subsequently went out of business.

Six months into Mrs. Jones pregnancy, Mrs. Peterson found a copy of the egg donor agreement. She and her husband had both signed the agreement as the Intended Mother and Intended Father, but never noticed the following clauses:

"Egg donor understands that as of the date of the ova retrieval, Intended Mother and Intended Father shall be the owners of the ova and any resulting embryos as joint tenants with rights of survivorship. They shall have complete control and authority over the disposition of the ova and resulting embryos …

Notwithstanding the foregoing, the Intended Parents shall not donate, sell or otherwise transfer any donated ova, pre-embryos, or embryos that result from the Procedure to another person or couple (other than a gestational surrogate working with the Intended Parents) for the purpose of conception."

Although other areas of assisted reproductive technology law may be applicable and may be considered, the primary focus should be on the issues affecting embryo donation. In addressing this problem, the following is illustrative of what, at a minimum, must be given thorough analysis:

1. What, if any, laws exist¹ a) to provide guidance to the courts in interpretation of egg donor agreements as they relate to embryo donation and b) in determining appropriate remedies?
2. What are the rights, if any, of a) Mr. & Mrs. Jones, b) Mr. & Mrs. Peterson, and c) the anonymous egg donor?
3. What are the liabilities, if any, of a) Mr. & Mrs. Jones, b) Mr. & Mrs. Peterson, and c) any other parties?

¹ Look to all jurisdictions for instructive authority.