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Yet Another “Surge” Article – Wall Street Journal
Posted On December 9th, 2008

“Ova Time: Women Line Up To Donate Eggs – For Money”

Melinda Beck’s piece in today’s Wall Street Journal was overall accurate. It even acknowledged the cost for the recipient side.

It also acknowledges the ASRM’s limit on compensation and mentions one donor agency that ignores it, since “the offer brings in donors who might not otherwise be interested.” But that is just the point of the limit; a compensation of $50,000 can be unduly coercive. Furthermore, since any legitimate clinic is a member of the ASRM and therefore pledges to abide by its guidelines, what clinic would agree to work with these donors? These exorbitant fees depend on ethical breaches by more than just the agency, but the doctor as well.

The ASRM’s compensation limit was set in 2000, and reiterated in 2007 but not updated. I think the changing times require an update to $12,000 or more. But until it is official, in our egg donation program we will keep our compensation at $10,000. It is worth it to keep our ethical standards.

 

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Beyond Compensation: Egg Donor Expenses & Financial Liability (3 of 3)
Posted On December 5th, 2008

In Beyond Compensation:  Egg Donor Expenses and Financial Liability (2 of 3), we listed a few reasons why we do not support penalty clauses in egg donor contracts.  Here are a few more.

Penalty clauses in egg donor contracts are unduly coercive.

Although unenforceable, they do serve a psychological purpose: coerce the donor into compliance.  Reasonable compensation already serves as an incentive; no additional one is needed. Furthermore, by the time the egg donor has come to the contract stage, she has already demonstrated her compliance by showing up to all her screening appointments and following all the instructions of the medical staff, for which she has received no compensation at all.

The ASRM places caps on egg donor compensation in order to avoid undue coercion; threat of severe financial penalty is just as coercive as enticement through exorbitant compensation.

Penalty clauses in egg donor contracts undermine good will.

Contractually threatening to sue your egg donor can only sour the donor’s attitude toward you and the altruistic motives that compelled her to donate eggs in the first place.

An egg donor contract is unlike any other legal document: it is a statement of intentions and good will between two parties in a unique relationship. Recipients should honor and respect their donor, and express gratitude for her efforts to help them conceive. In turn, the egg donor will follow her medical instructions in the hopes that the donation will be successful.

 

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Beyond Compensation: Egg Donor Expenses & Financial Liability (2 of 3)
Posted On December 1st, 2008

In Beyond Compensation:  Egg Donor Expenses and Financial Liability (1 of 3), we claimed to stand against penalty clauses in egg donor contracts. Here is why.

Penalty clauses in egg donor contracts are unfair.

The penalty, if enforced, could well add up to thousands of dollars, which the egg donor very likely does not have. Should she take the chance to make $10K, but in case of an unexpected turn of events, get no money at all but instead have to pay thousands to someone else?  It is not a risk any attorney would advise a client to take. The donor is already putting herself at a medical risk; she should not have to put herself at a financial risk, too.

Penalty clauses in this type of “personal services” contract will probably be held unenforceable.

A judge would be hard-pressed to assess a money damage award against a woman who did not allow her donor eggs to be harvested, absent a showing of fraudulent intent.

The penalty for backing out is that the egg donor does not get paid: the deal is that you take a reasonable risk with your money; the donor takes a reasonable risk with her body. It’s not like you are purchasing a piece of property. We have never encountered a case of a recipient recovering expenses and damages from an egg donor who did not fulfill her obligations.

 

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On Alex Kuczynski’s “Her Body, My Baby”
Posted On November 30th, 2008

So, we finally get to read the Sunday Magazine article, and they do not credit Sanford Benardo or Northeast Assisted Fertility Group (NAFG) for our input. Oh, well. Nonetheless, I found Kuczynski’s story of infertility and surrogacy heartfelt and brazenly honest. It was also pretty accurate.

I first read the story as a text-only computer print-out; only this morning did I see the accompanying photos, which blatantly expose her provocative subtext: “I am rich, white, urban, and privileged; dare to judge me for paying lower status women to do what I cannot.” Anyone familiar with Kuczynski’s writing would expect this. Readers commenting on the New York Times site, for the most part, declared her a self-indulgent snob; a handful were sympathetic. This was a personal story, not a serious study of surrogacy. It would be unfortunate if the general public judged surrogacy solely through Kuczynski’s lens.  Journalistic surrogacy stories are typically sensationalistic; this one is no different in that regard.

A couple of quibbles: I think Kucsynski did “low ball” the figure for the total cost of the surrogacy: although her carrier did not require extra insurance, if you add up the agency fee, carrier fee, legal fees, and medical fees, the figure is closer to $100K than $70K. We find many agencies are not upfront with all the possible costs involved to prevent scaring off prospective clients. (The NAFG site includes a section on program fees which shows a complete itemized breakdown.) Also, we would not advise “skirting” any legal issues and having the embryo transfer take place in New York,

 

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On Alex Kuczynski’s New York Times Magazine Cover Story: Her Body, My Baby
Posted On November 27th, 2008

We are eager to view Alex Kuczynski’s “Her Body, My Baby” when it is posted online and comes out on Sunday.

The New York Times contacted the Northeast Assisted Fertility Group regarding our opinions on surrogacy law and procedure, but we did not participate in Kuczynski’s surrogacy.  Preview the article on Jezebel.com.

(See our followup post to the Alex Kuczynski article.)

 

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Beyond Compensation: Egg Donor Expenses & Financial Liability (1 of 3)
Posted On November 24th, 2008

Apart from egg donor compensation (at a limit of $10,000 for her time and effort, according to the ASRM), our egg donors are entitled to reimbursement for other expenses incurred by the process. For local donors, these can include gas, tolls, parking, and lost wages for the retrieval day (which requires a full day off from work). For out out-of- town egg donors, expenses include travel, hotel, per diem cash (NAFG’s egg donation program offers $75 per day), lost wages, as well as travel, hotel and per diem expenses for a companion.  Although we appreciate the financial sacrifice that recipients make for fertility treatment, we discourage our clients from nickel and diming here: yes, your donor is getting paid for her efforts, but she is doing you a great service, and for that, she should be in a comfortable hotel, have money for food, and not be penalized for losing work. As an agency, we work hard to find reasonable rates for flights and hotels, but egg donor safety and comfort is our primary concern. An estimated expense budget is specified in the contract, so all agree on its amount and scope ahead of time.

According to our policy, the donor only receives her compensation if the retrieval takes place. If, for any reason, the egg donation cycle is not completed, the donor does not get paid. (Some agencies pay the fee in increments along various stages in the process, but we do not.) She cannot be held responsible for the recipients’ expenses for any of her travel or medical care (except in a hypothetical case of willful fraud on the donor’s part).

 

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Having a Child with a Surrogate (2 of 3)
Posted On November 16th, 2008

This article is part two of a three part series.  Click here to read Part One and Part Three.

“OK” reasons to consider surrogacy

“I am in the process of adopting internationally and surrogacy is my back-up plan in case it does not work out; Although I have children from a previous marriage I want more children with my new husband in order to bring us closer together; I have had endured many years of unsuccessful rounds of IVF and now I want to try with my own eggs and a surrogate.”

What is weak in these three scenarios is commitment to success. If you are working on an adoption at the same time, you are not fully committed, and risk abandoning the surrogate after a relationship has been established between you. The second two scenarios are risky because they typically involve women over forty who insist on using their own eggs, and will not consider donor eggs. The chances of a live birth resulting from an egg of a woman over forty is about 5-7%. The chances with an egg from a donor in her twenties is about 50% or higher.  If you are only committed to a 7% chance of success, it is really not a full commitment. And keep in mind what the carrier has to endure. She wants her efforts to result in a live birth, too, and is disappointed when it does not work.

 

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Having a Child with a Surrogate (1 of 3)
Posted On November 14th, 2008

This article is part one of a three-part series. Click here for Part Two and Part Three.

Reasons to Have a Child with a Surrogate: Bad, Not So Good, and Best

Surrogacy can be a risky endeavor, but not for the reasons most people think: the surrogate will get attached to the baby and keep it for herself, leaving the intended parents high and dry. This does not happen. Unfortunately, the sensational “Baby M” case in New Jersey twenty years ago still resonates.  That surrogacy was a “traditional” one, in which the surrogate was inseminated with the intended father’s sperm, and the child resulting was indeed the surrogate’s biological daughter. Before the insemination, the surrogate signed a contract relinquishing her rights to the child in exchange for money. This contract was unlawful and the courts rightly determined it invalid. No parent can lawfully relinquish parental rights to an unborn child.

Now, however, the vast majority of surrogacies are not “traditional,” but “gestational.” Surrogates, or “carriers,” as we prefer to call them, do not become pregnant by insemination. An embryo is formed with sperm and egg from the intended parents (or donors) through in vitro fertilization (IVF), which is then transferred to the carrier’s uterus for gestation. So the carrier has no genetic relationship to the child, and contracts enforcing the rights of the intended parents are lawful (in states where surrogacies occur). The baby belongs to the intended parents from the start,

 

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Conceiving Through Egg Donation (10 of 10): Signing the Contract
Posted On November 12th, 2008

Click here for Conceiving Through Egg Donation (9 of 10): Confidentiality and Anonymity.

Donor Reserving, Screening, and the Egg Donation Contract

Once you’ve made your choice, signed the contract with the egg donation agency, and paid your fee, your clinic can start the screening process. The agency will typically send an official “match sheet” (with the names of you and your egg donor), and the donor’s complete file to the egg donor coordinator at your clinic. The donor will have to fill out the clinic’s own application as well (obtained through the agency or directly from the clinic). One of the nurses will set up the egg donor’s screening appointments, which may occur all in one day, or broken up into about three separate appointments. Screening comprises a meeting with a social worker/psychologist (an MMPI test, a Minnesota Multiphasic Personality Inventory, is sometimes administered), a meeting with a genetic counselor, a doctor’s examination, and a series of blood tests for infectious and hereditary diseases.  It takes about three to four weeks to get the results back.

Most egg donors pass their screenings. Any donor who does not will be informed by a doctor directly. If your donor does not pass, your clinic will inform you, and your agency should work hard to find you a replacement quickly. If some genetic findings are inconclusive, you will be counseled by your doctor about the possible risks, and may choose to find another egg donor.

 

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Egg Donor Q&A: Donor Egg Retrieval Process
Posted On November 11th, 2008

What happens to donor eggs after they are retrieved? Do I get to know the results? Do I meet the recipients or potential offspring?

After the donor egg retrieval, the eggs are fertilized and then observed for a few days. Not all will fertilize or develop. Between one and three embryos will be transferred to the recipient. If any viable embryos are left over, they will be frozen (embryos hold up better in the freezing process than eggs do). It takes about six weeks to find out if a pregnancy results.

The majority of egg donor cycles in the US at this time are mutually anonymous: the donor egg recipients and the egg donor may know general information about each other, but they do not know each other’s names and they never meet. If working in a mutually anonymous arrangement, you may be informed of the number of donor eggs retrieved, but not the number actually fertilized or whether a pregnancy or live birth resulted. If you are working non-anonymously, you may get more information, depending on the arrangement. Some donors meet their recipients with the supervision of a social worker, and leave the opportunity open to meet any potential offspring. Both parties agree to the anonymity level before the match is made.

 

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