My colleague, Amy Demma, has written a very informative article about the need to address the disposition of excess embryos that are created during an egg donation cycle:

When I ask prospective parents who are hoping for a successful egg donation cycle to look ahead to having completed their family and then having to deal with excess embryos, I know I am asking what may seem like too much…it turns out, really, I’m not. Many recipients of donor eggs will end up having to make decisions about the disposition of excess (or as I like to say “residual”) embryos. So that parents can most easily and quickly address embryos no longer needed for their own family building, certain steps should be taken before the embryos are created.

In most Egg Donor Agreements (those direct contracts typically anonymous egg donors enter into with recipients) the parties to the contract agree to what can be done with the excess cryopreserved embryos. As options, the recipients could continue to use the cryo’d embryos if they want more children, they might be able to donate the embryos for research or even to someone else for family building or they could direct the storage facility to thaw the embryos and allow them to become non-viable. What the recipients will be able to do depends a good deal on the egg donor as well as a well-drafted contract.

While many donors will give parents full discretion as to how to deal with residual embryos, some may ask that the parents not proceed (with donation to science or to another person, typically) without their further consent. A small percentage of donors may even deny the recipients a certain disposition option; I’ve known several donors to restrict the recipients from donation for certain types of medical research (research related to human cloning, e.g.) while others have asked that the embryos not be donated to another person for more family building.

When dealing with residual embryos, you may find that you need the egg donor’s signature even if she imposed no restrictions in the egg donor agreement (the storage facility, the clinic, the research facility, whatever third-prarty [sic] you are working with may, as a matter of policy, require the egg donor to sign an authorization or release). In the egg donor agreement, then, it becomes very important to obligate the egg donor to be reachable and responsive at the time you are making decisions about residual embryos. Put the donor on notice that you may be in touch with her for this reason, be sure the donor agrees to be notified (likely through the parents’ attorney), inform the donor that she may be required to sign a release or consent…and (this is super important), in the contract be sure it reads that time is of the essence and that donor will be expected to respond in a timely manner. Let the donor know you will be relying on her responsiveness, and that if she fails to respond, she will be in breach of the contract. It is important to include this language so that the donor understands the seriousness of her commitment to assist you should you need her involvement at the time of embryo disposition. When anticipating your egg donation, be sure your egg donor agrees to all you will need from her, now and in the future. Be sure you have a well and comprehensively drafted contract, be sure the donor understands that she is making both short and long-term commitments to you.

Just a couple of quick observations. Sometimes Egg Donors become unreachable, particularly after the passage of years which is typically when Recipients have to make decisions about the disposition of their excess embryos. So to address Amy’s very valid point about the insistence of some fertility clinics to require a release from the Donor before disposal, it is good practice to have a separate release executed at the time the egg donor contract is signed authorizing any medical facility in possession of the excess embryos to follow the Recipient’s instructions. Similarly, if the Egg Donor contract requires notice and consent from the Donor before the embryos can be disposed, the inclusion of a provision that permits their disposition without the Donor’s consent after reasonable efforts to reach her (and/or her attorney) is an effective way to avoid the situation where the Donor’s consent is not obtainable through no fault of the Recipients. Without such a clause, the Recipient Parents could be in the unfortunate situation of having to renew their cryopreservation agreement with their IVF facility in perpetuity –at great expense to them.