Neither the owner nor the volunteers of Surrogate Mothers claim to be an attorney, lawyer, or have any experience in the field of law.

This is a sample agreement for a embryo donation arrangement. Because each embryo donation arrangement is unique, we do not recommend using this sample agreement as your actual embryo donation contract, but, rather as a template or draft for discussion among the parties involved in the arrangement and their legal counsel.

This sample agreement should not under any circumstance be used as substitute for legal representation for any party involved.

Reproduction or copying of this contract on any other website, or for commercial/professional use without direct permission of Surrogate Mother's Online is strictly prohibited.

EMBRYO DONATION AGREEMENT

THIS AGREEMENT is made by and between ___________________ and _______________, the EMBRYO DONOR COUPLE, (also referred to herein as “DONORS”), and ________________________and ________________________ the EMBRYO DONOR RECIPIENTS, (also referred to herein as “INTENDED PARENTS” and/or “RECIPIENTS”) (all of the above are collectively referred to herein as the “Parties” or “Party”).

1.  PURPOSE

            The purpose of this Agreement is to define and outline the terms, rights and responsibilities of the Parties desire to have the Donors donate certain embryos to the Intended Parents, including the transfer of all custodial, property, parental, and other rights and responsibilities to such embryos to conceive a child or children who shall be recognized as the Intended Parent’s child(ren) for all intents and purposes.  It is understood and agreed that the embryos, once transferred to the Intended Parents, may be utilized by themselves for transfers to the Intended Mother, or may be transferred to a surrogate mother on behalf of the Intended Parents.

            By our signatures below, this Agreement defines our complete and final Agreement concerning the transfer of full rights and responsibilities (hereinafter referred to as the “Donation”) in embryos from the Donors to the Recipients, future disposition of said embryos by Recipients once the Donation has occurred, and future contact of Donors and/or their children, if any, with any child(ren) subsequently born as a result of the Donation described herein.

2.  REPRESENTATIONS AND WARRANTIES

(A)       The Donors are a legally married couple, have no relationship by blood or marriage to the Recipients, are both over the age of eighteen (18) years, and are desirous of entering into the following Agreement.  The Donors warrant that they have received no financial gain from the Donation described herein.  The Donors further warrant that to the best of their abilities, all representations, either oral or written, made to any professional, entity, or party in connection with this Agreement are true, correct, and complete.  It is understood that embryos identified in this Agreement shall be transferred to the Recipients for the purpose of achieving a pregnancy and carrying a pregnancy to term.

            The Donors specifically warrant, by their signatures below, that the embryos were created with donor ova through _________(), and the Donor Husband’s sperm.  The Donors further warrant, by their signatures below, that the egg donor contract, if any, they signed with their anonymous egg donor through       __ contained a specific provision stating that they maintain the exclusive right to donate any resulting embryo(s) to a third-party without the Egg Donor’s written or verbal consent, or specifically warrant that no legal contract between the Donors and the original Egg Donor existed to limit the donation of said embryo(s) to a third-party.

(B)       The Recipients are a legally married couple, have no relationship by blood or marriage to the Donors, are both over the age of eighteen (18) years, and are desirous of entering into the following Agreement.  The Recipients warrant that they have made no financial offer to the Donors for the Donation except as described herein.  The Donors further warrant that to the best of their abilities, all representations, either oral or written, made to any professional, entity, or party in connection with this Agreement are true, correct, and complete.

(C)       The Donors agree not to form and hereby do not desire to establish a parental relationship with any Child born pursuant to this Agreement.  Further, they believe and intend that the Child is morally, ethically and legally that of the Recipients.

(D)       All Parties have been advised and understand that assisted reproductive law is an “unsettled” area of the law, and as such, no warranties can be made regarding legislative changes that could affect this embryo donation arrangement.  In addition, no warranties have been or can be made as to the ultimate cost, liability or obligation of any Party that may result from any legislative or judicial order and/or decision related to the conduct contemplated herein.

(E)  IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THIS EMBRYO DONATION AGREEMENT IN NO WAY CONSTITUTES PAYMENT FOR GENETIC MATERIAL, A CHILD OR THE RELINQUISHMENT OF A CHILD.

(F)  The Parties have been specifically advised by their respective counsel that there is no guarantee or warranty by any professional associated with this donation arrangement regarding the following:  (1) That the Donors will in fact transfer healthy, viable embryos; (2) that a child(ren), if conceived, will be a physically and mentally healthy child free of birth or congenital defects; (3) that the Donors will comply with the terms and provisions of this Agreement; and/or            4) that the Recipients will comply with the terms and provisions of this Agreement.

                                                            3.  DEFINITIONS

A“EMBRYOS” for purposes of this Agreement refer to (  ) embryos which are currently cryopreserved at __________________________.

B.         “CLINIC OF ORIGIN” for purposes of this Agreement refers to _____________________________ the medical clinic where the in vitro fertilization(“IVF”) resulting in the Embryos described above. 

C.        “TREATING CLINIC” for purposes of this Agreement shall be ____________________________________________, the medical clinic designated by the Recipients which has agreed to maintain custody of the embryos from the Donors, and to perform the medical procedures necessary to facilitate a transfer of said donated Embryos to the Recipient Mother, as well as any associated storage or other necessary care for said Embryos.  It is understood and agreed by the Parties that the Recipients may later designate a different Treating Clinic, if desired or necessary, and transfer remaining Embryos to the new Treating Clinic at their expense. 

D.        “DONATION” for purposes of this Agreement shall be defined as occurring at the point in time that the Donors relinquish physical custody of the Embryos at the Treating Clinic, which shall be within one (1) month from the date this Agreement is executed.  Embryos shall be released to the physical custody of the Recipients under the direction and supervision of ______________________.  Such Donation shall constitute the complete and final shift of all legal and other rights, responsibilities and risks for Embryos from Donors to Recipients.

E.         “GENETIC SIBLINGS” for purposes of this Agreement shall be defined as the existing children of the Donors, who were born as a result of prior embryo transfers through _____________________________.

F.         “RESULTING CHILDREN”, if any, for purposes of this Agreement, shall refer to one or more children born from the direct result of Recipient’s use of the Embryos described herein.  Such conception is anticipated to occur following Donation of Embryos from Donors to Recipients.  It is understood and agreed that the Resulting Children will be genetically related to the Genetic Siblings described above.

           

            NOW THEREFORE, in consideration of the mutual promises contained herein and with the intentions of being legally bound hereby, WITHOUT the exchange of any form of valuable consideration, the Parties agree as follows:

                                                            4.  ASSUMPTION OF RIGHTS

A.  The Recipients shall assume, from the date the actual Donation occurs, all legal rights, responsibilities and risks, including but not limited to financial obligations, for Embryos described herein.

B.  The Recipients agree to assume reasonable charges, if any, related to the cryopreservation of said Embryos from the date of Donation until they are used.

C.  The Recipients shall assume the legal and parental responsibilities for any Resulting Child, regardless of abnormality or defect.  This affirmation shall extend to the use of the Embryos, including any Resulting Children born as a result of an identification error on the part of the Treating Clinic or_________.    It is the responsibility of the Recipients to consult with appropriate medical professionals and/or a geneticist, if desired, as to the risk of abnormalities and/or defects and therefore hold the Donors harmless for any potential future abnormalities and/or defect(s).

D.  A child(ren) born pursuant to this Agreement shall maintain rights of inheritance tied solely to the Intended Parents.

E.  The relinquishment of rights contained herein is final and irrevocable.  The Donors specifically understand that said waiver shall prohibit any legal action on their part to bring a suit to establish parenthood, custody, guardianship or visitation, including in the event of the Recipients’ disability or death.

F.  The Parties shall maintain mutual respect for each other’s privacy with respect to the details of this Agreement.   Genetic Siblings and/or Resulting Children may be informed of the details of this Agreement only after prior notification to all Parties. 

G.        In the event that one or more Resulting Children are born from the Embryos donated, the Parties agree that the Recipients shall assume and shall be entitled to all rights and responsibilities described above.  The parties further understand and agree that should further legal action on the part of any Party be necessary or advisable to facilitate the establishment of the Recipient’s parental rights, and/or the termination of the Donor’s parental rights (to the extent any are recognized), each of the Parties agree to take such action.

5.  LACK OF VALUABLE CONSIDERATION

            By their signatures below, the Parties hereby certify that no payment, in cash or kind, has been offered or accepted as consideration for Donating the Embyros to Recipients and/or for transferring Donor’s rights and responsibilities in Embryos to Recipients.

6.  MEDICAL SCREENING AND PROCEDURES

A.        The Recipients accept and take full and complete legal responsibility for the completion and adequacy of any and all physical exam(s), medical testing and/or screening with respect to the formation of the Embryos (except malpractice), if any.

B.         The Recipients shall be financially responsible for any and all medical expenses relating to the medical testing and screening, all medication and surgical procedures, laboratory fees, pharmaceutical costs, collection procedures, etc., with respect to their own transfer of Embryos and said expenses shall be paid directly by them in accordance with the terms and provisions of this Agreement.

7.  RELEASE OF LIABILITY

A.        The attorneys in this matter have specifically advised their respective clients that it is the independent responsibility of each Party to this matter to assess and obtain adequate medical advice and/or information required in this matter.  Said attorneys are therefore hereby not independently responsible for any medical advice and/or information which may or should have been given to the Parties regarding the conduct contemplated by this Agreement.  Informed consent for all medical testing and procedures is the individual responsibility of the Parties and the attending physicians.

B.         The Recipients specifically release Donors from any and all liability arising out of the condition of the Embryos.  Donors agree to cooperate and provide all necessary documentation required to verify the total number of Embryos prepared for Donation and facilitate the transfer of said Embryos to the Donors.

C.        The Recipients agree to take every precaution reasonable and practical to properly preserve and care for Embryos following Donation, to include reasonable supervision of the proper care and maintenance of Embryos by the medical facilities until the transfer is complete.

D.        The Donors acknowledge that the Embryos, once thawed, shall be transferred to the Intended, Recipient Mother and/or a surrogate mother, at the advice and discretion of the Treating Clinic’s physicians.  The Donors further acknowledge that the transfer of more than one (1) embryo could lead to a multiple pregnancy, which may increase the risk of the pregnancy and any Resulting Children.  The Recipients release the Donors from any liability regarding the outcome of any procedure related to the thaw and transfer of embryos, as well as any subsequent decisions regarding the termination of any pregnancy and/or the selective reduction of a multiple pregnancy.  It is acknowledged that the Recipients shall have the exclusive right to control a pregnancy, once achieved.

8.  HEALTH REPRESENTATIONS

A.        Recipients represent that they have been provided with a health history statement by the Donors with respect to genetic and/or inheritable diseases which could affect the Resulting Children in this matter.  Recipients accept the embryo(s) in their current state and condition.

B.         Donors agree to provide the Recipients (through respective counsel), upon request, any other medical information limited to that necessary for the proper care of the pregnancy and/or Resulting Children, if any.  Donors agree to furnish available written documentation concerning said medical requests, if practical.

C.        Recipients represent that no material medical conditions are known to exist by either Recipient Mother or Father that has not already been fully disclosed by Recipients.  Recipients further warrant that they carry health insurance for themselves and for any Resulting Children who may be born to them, including Resulting Children.

9.  DISPOSITION OF EMBRYOS

A.        The Parties agree that Embryos may be transferred to the uterus of the Recipient Mother and/or a surrogate mother for as many cycles as necessary or desired to achieve a pregnancy/pregnancies to complete their family.

B.         The Parties agree that remaining Embryos not otherwise used for Recipient’s embryo transfer procedures may NOT be destroyed or donated to medical research of any kind.  Instead, is the mutual intent of the Parties to have any excess embryos not utilized by the Recipients ____________________________________________________.

C.        In the event that both Recipients should die after the Donation but before all remaining Embryos are utilized, the Embryos shall revert back to the property of the Donors, and the Donors shall then assume responsibility for the disposition of the Embryos thereafter.

10.  CONTACT INFORMATION

A.        Recipients and Donors agree to maintain and produce for each other and for Genetic Siblings and/or Resulting Children, if any, all MATERIAL medical information reasonably expected to be relevant to medical care of Genetic Siblings generally. 

B.         It is the intent of this Agreement that disclosures applicable to this Section may continue indefinitely at the discretion of the subject individuals.

C.        Donors and Recipients agree that any future contact, if any, will be at the mutual discretion of all Parties to this Agreement.  It is agreed and intended that every effort will be made to ensure that the cooperative spirit of the Parties’ venture is supported by this Agreement.  Future contact between the Parties, if any, shall be made through respective counsel prior to initiating any direct contact between the Parties.

D.        The parties agree, at a minimum, to send at least one (1) holiday photo to the Donors every year of the Resulting Child(ren) and/or family.  In addition, the Parties agree to mutually exchange any change of address and/or telephone number independently between the Parties.  Such obligation shall expire serially as each Resulting Child reaches the age of Eighteen (18). 

11.  ATTORNEY’S FEES

A.        Recipients shall be financially responsible for any legal fees associated with the preparation of this Agreement as well as providing full legal clearance to ______ prior to the transfer of Embryos in this matter.

B.         Recipients shall further be financially responsible for any reasonable legal fees incurred by the Donors in their review of this Agreement with independent counsel of their choice, if desired.

C.        By their signatures below, the Donors specifically warrant that they have had the opportunity to obtain any additional information or counsel they desire regarding the terms of this Agreement.

12.  WAIVER OF CONFLICT

A.        It is understood and agreed that the Recipients shall contribute Two Hundred and Fifty Dollars ($250.00) towards the legal representation of the Donors in this matter.  

B.         All Parties understand that when one party’s attorney is suggested by, referred by or paid by the other party, this creates a potential conflict of interest.  In other words, in such circumstances, Donor’s attorney could be induced to favor the Recipients rather than vigorously representing the Donor.  The Parties have been advised of this potential conflict of interest and informed that they have the right to consult with and pay for an attorney of her choosing.  With full knowledge of these facts, all Parties hereby waive the potential conflict of interest.  All Parties represent and warrant, pursuant to their respective legal consultations, that they have been fully informed of and fully understand the terms of this Agreement and the conditions, duties, rights and responsibilities that arise under the Agreement.

           

13.  PRIVACY AND CONFIDENTIALITY

A.        The Parties agree that they will not provide nor allow to be provided any information to the public, news media, or any other individual regarding details of the specific embryo donation arrangement contemplated herein or identifying information regarding any Party herein (including, but not limited to, names, vocations, place of residence and/or personal characteristics) without written permission of the other Party.  Further, the Parties agree that no Party will write any articles, books or other written material in any media and published in any form without the prior written permission of the other Parties.  This provision further prohibits any Party from disclosing the terms of this Agreement and/or the circumstances surrounding the conception of any Resulting Children, if any, to any third person, entity, including the Genetic Siblings and/or Resulting Children, without the mutual consent of the Parties.

B.         In the event litigation arises out of this Agreement, the Parties agree that they, their attorney, their heirs and representatives shall make all efforts to maintain such confidentiality as is intended by this Agreement as to the general public and as to each other, including, but not limited to, requesting that court records be sealed, requesting the court to invoke gag orders, requesting the court in its procedures and in the conducting of hearings to maintain confidential the identity of the Parties.

14.  MATERIAL BREACH

A.        In the event of a breach of this Agreement, it is understood that all Parties may utilize all remedies available in law and equity.

B.         Any violation of an express warranty contained herein shall constitute a material breach.  The continued performance of an aggrieved party following a material breach shall not constitute a waiver, and all rights accruing or retained by the aggrieved Party shall remain in full force and effect.

C.        In the event a material breach is subject to cure, and said cure is effectuated, the continued performance of an aggrieved party shall constitute a waiver.

D.        The Parties enter into this Agreement with the expectation that it will be legally enforceable in accordance with its terms.  In the event any of the terms contained herein are deemed invalid or unenforceable, it is the specific intent of the Parties to allow this Agreement to represent their “agreement in fact” and be bound by its terms to the extent and breadth permitted by law.  Any provision deemed invalid shall be severable from the remainder of this Agreement and shall not cause the entire invalidity of this Agreement.

15.  GENERAL PROVISIONS

A.  AMENDMENT.  This Agreement shall be amended only by a written addendum signed by all the parties.

B.  EXECUTION OF AGREEMENT. This Agreement may be executed with the Parties signing in “counterpart” whereby the Donors sign one original copy and the Recipients sign another copy of this Agreement.  Upon execution in counterpart form, both sets of original, executed copies of this Agreement shall be deemed to constitute one instrument.  The original of the respective counterparts shall be maintained by the Attorney for the Recipients for the benefit of all Parties.

C.  ENTIRE AGREEMENT.  This Agreement sets forth the entire Agreement between the Parties.  All agreements, covenants, representations and warranties, expressed and implied, oral and written, of the Parties are contained herein.  No other agreements, covenants, representations, nor warranties, expressed or implied, oral or written, have been made by any Party to the other(s) with respect of this Agreement.  All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to this Agreement are waived, merged and superseded.  This is an integrated Agreement.

D.  DRAFTING PARTY/CAPTIONS.  No provision of this Agreement is to be interpreted for or against any Party because that Party or that Party's attorney, or agent drafted the provisions.  The captions, headings and section designations are for the convenience of the Parties only and are not meant to limit the context or content of the paragraphs.

E.  SEVERABILITY AND SURVIVAL.  In the event any of the provisions, whether sentences or entire Paragraphs, of this Agreement are deemed to be invalid or unenforceable, the same shall be deemed severable from the remainder of this Agreement.  If such provision shall be deemed invalid due to its scope or breadth such provision shall be deemed valid to the extent of the scope or breadth permitted by law.  All terms that by their sense and context are intended to survive the termination of this Agreement, including by not limited to, any rights conferred, representations or warranties made and any risks assumed by any Party to this Agreement and any jurisdictional or enforceability provisions shall survive the termination or expiration of this Agreement.

           

F.  FREE AND VOLUNTARY EXECUTION.  Each Party acknowledges that it fully understands the Agreement and its legal effect and that it is signing the same freely and voluntarily and that no Party has any reason to believe that the other Parties did not freely and voluntarily execute this Agreement.

G.  DISPUTE RESOLUTION. 

(i) Mediation.  The Parties agree to mediate any dispute or claim arising between them out of this Agreement or any resulting transaction before resorting to arbitration or court action.  Mediation shall be attempted to resolve the dispute or claim via an impartial, neutral mediator who is authorized by the Parties to facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the Parties.  Mediation fees, if any, shall be divided equally between the Parties. 

(ii)  Arbitration. 

(a) Except as set forth in Section G(i) above, in the event of any dispute, controversy or claim arising out of or relating in any manner to the Agreement, or the interpretation, enforceability, performance, breach , termination or validity hereof, including, without limitation, this Section G (A “Dispute”), either party may submit the Dispute to be finally settled by binding arbitration, by a single arbitrator, unless otherwise required by law, to be held in_________________, under the rules of the American Arbitration Association (“AAA”) as then in effect (the “Rules”). The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the notice initiating the arbitration.  If the parties cannot agree on an arbitrator, then the complaining party shall notify AAA and request selection of an arbitrator in accordance with the Rules.

(b) The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claims(s) asserted.  The fees and expenses of any arbitration (including the fees and expenses of the arbitrator, attorneys and expert witnesses) shall be paid by the party primarily losing the arbitration, as identified by the arbitrator.  The arbitrator shall have exclusive authority to resolve all Disputes, including, but not limited to, any claim or allegation that all or any part of this Agreement is void or unenforceable.  The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration, and judgment may be entered on the decision of the arbitrator in any court having jurisdiction.  The arbitrator shall apply ______________law to the merits of any dispute or claim, without reference to rules of conflicts of law.  The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without abridgment of the powers of the arbitrator.

(c)  All proceedings and all documents prepared in connection with any Dispute shall be confidential and, unless otherwise required by law, the subject matter thereof shall not be disclosed to any person other than the parties to the proceedings, their attorneys, witnesses and experts, the arbitrator, and, if involved, the court and court staff.  All documents filed with the arbitrator or with a court shall be filed under seal.  The parties shall stipulate to all arbitration and court orders necessary to effectuate fully the provisions of this subsection concerning confidentiality.

(d)  In the event that any Party commences an arbitration or court action based on a Dispute without attempting to resolve the matter through mediation, then in addition to any other remedies available at law or in equity, in the discretion of the arbitrators or judge, that Party shall not be entitled to recover attorney's fees, even if they would otherwise be available and/or rewarded to that Party in any such arbitration or court action.

H. NO AGENCY, PARTNERSHIP, EMPLOYMENT OR JOINT VENTURE.  No agency, partnership, employment or joint venture is created or intended to be created by the Parties.

I.  TAXATION.  None of the attorneys representing any of the Parties in this matter have offered advice on taxation.  The Parties have been specifically advised to consult independent counsel regarding tax matters that may arise. 

J.  CHOICE OF LAW AND JURISDICTION.  This Agreement has been drafted and executed in _______________________ and shall be governed by, construed and enforced in accordance with the laws of the State of ___________________

K.  NOTICE.  Any notice to be made to any other Party to this Agreement shall be made through their respective attorneys.

L.  TIME IS OF THE ESSENCE.   Time is of the essence in this Agreement.

M.  ACKNOWLEDGMENTS.  All Parties, by signing below, acknowledge that they have carefully read and understand the provisions of this Agreement.  All of the Parties agree to all terms herein and have executed this Agreement freely, voluntarily and without undue duress or influence.

DATE:                                                        By:  ____                                                                             

                                                                                                (name)

                                                                                                DONOR MOTHER

 

DATE:_________                                       By:   _____________________________

                                                                                                (name)

                                                                                                DONOR FATHER

DATE:_________                                       By: ___________________________         

                                                                                                (name)

                                                                                                INTENDED FATHER

DATE:_________                                        By:  ______________________________

                                                                                                (name)

                                                                                                INTENDED MOTHER

 

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