The importance of entering into an embryo disposition agreement, at the time you form embryos with your partner/spouse, cannot be overstated. In New York, a legally compliant embryo disposition agreement will ensure that your respective intentions, at the time the embryos were created, will be honored should you and your spouse/partner sever your relationship. This is particularly true when one or both of the parties becomes infertile after the formation of the embryos and the stored embryos provide them with the only opportunity to have a child genetically connected to them. For example, the Agreement may state that the legal rights to -and dispositional control over – the embryo(s) will be transferred to one of them in the event of their divorce. In that circumstance, the person who transfers dispositional control of the embryo is not a parent of any child born thereafter UNLESS they say in writing- before the embryo transfer- that they want to be a parent. While you will be required to sign embryo disposition forms (also called “advanced directives”) at the IVF clinic, clinics often allow their patients to change their dispositional elections, after the embryos have been formed. By contrast, once a New York Embryo Disposition Agreement is signed, the dispositional elections made in the Agreement cannot be changed except upon the mutual consent of both parties.
Embryo disposition agreements are legally enforceable provided they comply with statutory requirements. One critical requirement for enforceability is that the parties were represented by separate legal counsel in the review and execution of the agreement. If you are married, transfer of legal rights and dispositional control of the embryos only becomes effective upon your 1) living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or (2) living separate and apart at least three years; or 3) divorce; or 4) death. The person who transfers dispositional control of the embryo is not a parent of the child UNLESS they sign a writing, prior to the embryo transfer, stating that they want to be a parent.
Entering into an Embryo Disposition Agreement is an extremely important protection for those who create embryos with their own gametes knowing that they may not have the ability to form additional embryos, with their own genetic material, at a later time. Your failure to think carefully through your dispositional options at the time you form your embryos can have a profound impact on your ability to use them down the road.
There is a growing trend in favor of using known gamete/embryo donors both because it provides intended parents with greater assurance that the donor has provided reliable biographical information and also because it provides the opportunity for the child to have a personal relationship with the donor. Whether you choose to use a known egg or sperm donor or one selected through a matching entity, you’ll need to enter into an egg, sperm or embryo donation agreement. These agreements are essential because they lay out everyone’s expectations and, depending on your circumstances, the agreement will likely be important to obtaining a court order securing your legal relationship to your child. Those who have gone through the detailed process of reviewing these agreements with legal counsel are also better informed about their rights and obligations throughout their family building process.
Some of the issues addressed in the Donation Agreement include:
In addition to the donation agreement, it’s often a good idea to also obtain a court order recognizing the intended parents’ exclusive parental relationship to the child.
It is important for you to consult with experienced counsel to determine what further legal action is recommended to ensure that: 1) the parental relationship between the child and non-biologically related parent is legally secured and 2) the potential legal relationship between the donor and child is formally terminated.
If you are a same-sex couple in New York who conceived a child through assisted reproduction, you have the option of obtaining either an Order of Adoption (see discussion here) or a Judgment of Parentage. The benefits of the Judgment of Parentage process is that it’s much less intrusive, faster and cheaper than the adoption process. There’s no need for you to provide the court with a homestudy, for you to undergo criminal or child abuse clearances or for you to provide the other documentation required in a typical adoption proceeding. In a Judgment of Parentage proceeding, the only issue before the court is whether the intended parents jointly conceived the child using gametes provided by a donor.
When the intended parents are married, both will be named as the child’s parents on the birth certificate. However, it’s important to know that being married to the child’s mother, and/or named as a parent on your child’s birth certificate, may not fully protect your legal relationship to your child in the event of a challenge outside of New York or New Jersey. That’s because many states don’t apply the marital presumption of parentage in a gender-neutral fashion to same-sex married couples. However, because of the “Full Faith and Credit Clause’ of the United States Constitution, obtaining a court order, declaring both of you to be “parents” should ensure that your parental relationship to your child will be recognized throughout the United States.
While we understand that having to undergo a legal proceeding to secure your parental rights may seem like an unnecessary cost and inconvenience, particularly at a time when you simply want to enjoy your child, there is little doubt that the benefits to be derived are worth it.
In both New York and New Jersey, the spouse of the person giving birth to a child conceived through donor sperm/embryos has the right to be named a parent on the child’s birth certificate. New Yorkers also have the right to sign a Voluntary Acknowledgement of Parentage (AOP) form at the hospital regardless of whether they’re married to the parent who gave birth. Signing the AOP form at the hospital will serve to secure your legal relationship to your child. However, because there are a number of grounds upon which the validity of an AOP can be challenged, it’s still a good idea for intended parents to also obtain either an Order of Adoption or a Judgment of Parentage. Nevertheless, the ability to sign an AOP will protect the large numbers of families lacking financial resources or the forethought to petition the court for a judgment of parentage or adoption.
