What should be included in a written donor agreement?
It is difficult to include examples of donor agreements on the basis that each and every agreement is unique and needs to be tailored to individual parties' circumstances. There are however standard or necessary clauses that should be included in agreements to ensure the parties are clear about each other's position. The following are some suggestions for matters that should be considered in agreements:
- Background: It is a good idea to start with a background section that outlines the relationship between each party and the reason for the agreement. This should also include whether or not the donor has children or a partner themselves so that everyone is clear about the family situation of each party.
- Refer to relevant legislation: Donor agreements are affected by several pieces of legislation such as the Human Tissue Act and the Family Law Act. The relevant sections should be referred to so that each party is clear about the law and any penalties that might apply to breaches of that law.
- Expenses: Any agreement with regard to expenses should be outlined clearly so that each party is clear about their commitment in that regard. This should be as detailed as possible but remember the limitations of payments to donors.
- Counselling/Psychological evaluations: If the donation is dealt with by a registered ART provider then counselling will occur. It should be made clear that each party agrees to the counselling and is willing to share the outcome or report of the counselling.
- Medical tests and treatment: The donor process, particularly for egg donation, can be medically invasive. On that basis the agreement to undergo any required medical tests or treatment should be clearly outlined.
- Conduct during treatment: The quality of sperm or eggs can be affected by the donor's conduct. For example, drinking alcohol or using drugs while undergoing treatment may decrease the potency and quantity of sperm and eggs. The parties may wish to consider an agreement about the donors conduct during the treatment period.
- Use of embryos after donation: The agreement should be clear about whether or not the donor has any say in the embryos created out of their donation. Whilst the ART provider will require the donor to sign forms relinquishing their rights to the donated sperm or eggs it is preferred the parties make clear their agreement in this regard.
- Estate of the parties: What do you want to happen to any eggs or sperm that is donated if one of the parties dies? It is best to outline this decision in the agreement.
- Confidentiality: All cases differ in this regard depending on the structure and nature of the party's relationship. It is preferable to be clear about what level of confidentiality each of the parties expect from one another.
- Termination: Outline how the agreement can be terminated and in what circumstances.
- Dispute resolution: It is always a good idea to outline which dispute resolution process, such as mediation, should be undertaken to resolve any issues that arise.
- Legal advice: All of the parties should receive legal advice before signing the agreement and the fact that advice has been given should be outlined in the agreement.
This list is not an exhaustive list and each agreement may include unique clauses specific to the parties' circumstances.
Are the financial aspects of a donor agreement enforceable?
Parties should be aware that the financial aspects of donor agreements are enforceable. If the parties agree that one or both of the parties will pay for certain expenses, the agreement can be enforced through the courts. Legal advice should be sought in all cases.
Felix and Mez, a LGBTIQ couple, and intended parents, entered into an agreement with Liz who would be a surrogate for them. They agreed to cover the costs of pregnancy but then did not make the payments as agreed. Liz, by necessity, ended up paying the costs for medical treatments and the cost of the birth. Liz can sue Felix and Mez to recover the out of pocket expenses.