Sample Egg Donation Contract
Neither the owner nor the volunteers of Surrogate
Mothers claim to be an attorney, lawyer, or have any experience in the
This is a sample agreement for an egg donation arrangement. Because
each egg donation arrangement is unique, we do not recommend using this
sample agreement as your actual egg 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.
Important, please read: This is intended as a guide as to
what to expect when going through the legal aspects of egg donation. This is not intended to be a
legal document. It was written under California law, and you should
always seek the advice of a legal professional that has knowledge of
your individual situation. This contract
is property of Family First Fertility© and any reference or use of
it is at the user's discretion.
OVA DONATION AGREEMENT
This ova donation agreement (hereinafter referred to as "Agreement") is
made and entered into by and between ____________ , (here in after
referred to as "Donor"), and, ________(hereinafter Intended
Recipient/Parent) (hereinafter referred to as "Intended Mother"), and
___________(hereinafter Intended Recipient/Parent) (hereinafter
referred to as "Intended Father"). (Donor, Intended Mother, and
Intended Father are hereinafter collectively referred to as the
This Agreement is made with the understanding of the following facts:
1. RECITALS AND WARRANTIES
A. The sole purpose of this Agreement is to enable Intended Parents to
have a Child(ren) by means of in vitro fertilization using ova donated
by Donor and Intended Father's sperm. As used in this Agreement,
"ovum", "ova", or "donated ova", shall include all human ova retrieved
from Donor simultaneously pursuant to a medical ova retrieval procedure
(hereinafter referred to as "Retrieval Procedure"). As used in this
Agreement, "child", "Child", or "Children" shall include any and all
Child(ren) born from the donated ova retrieved pursuant to this
B. All of the Parties warrant that all representations, either oral or
written, made to any professional, entity or Party are true, correct,
and complete. Additionally, the Parties desire to maintain
confidentiality between themselves, one to another, and between
themselves and the public.
C. Donor is a single woman, the age of twenty-one (21) years or over,
who is desirous of entering into this Agreement. The Donor, based on
her information and belief, represents that she is capable of producing
healthy, normal ova. Donor wishes to donate her unfertilized ova to the
Intended Parents for their use in the conception and parenting of a
child. Donor neither desires nor intends to have a parental
relationship with any Child(ren) born of the donated ova and agrees not
to attempt to form a parent-child relationship with any Child(ren) that
may be born pursuant to this Agreement now or in the future. Moreover,
Donor relinquishes and disavows any and all rights, interest,
responsibilities and claims, if any, with respect to the donated ova
and/or any and all Child(ren) born of the donated ova. Further, Donor
believes and intends that any and all Child(ren) born of the donated
ova are morally and legally that of the Intended Parents as if the
Child(ren) was genetically of both Intended Parents.
D. Intended Parents are a married couple, the age of twenty-one (21)
years or over, who are desirous of entering into this Agreement.
Intended Parents, based on their information and belief, represent that
they have experienced difficulty conceiving a child without the
assistance of medical technology. Intended Parents desire and intend to
have the donated ova fertilized with Intended Father's sperm and the
embryos transferred to Intended Mother's uterus. Intended Parents
propose and desire to gestate the resulting embryo(s) to term and
accept all parental rights and responsibilities for the Child(ren) thus
conceived and born. It is absolutely the Intended Parents' decision
whether to gestate the embryo(s) to term. Further, Intended Parents
warrant that they have discussed the implications of parenting a child
conceived via ova donation and that they are comfortable and
knowledgeable regarding the situation.
E. The Parties understand that the Intended Parents have suffered much
pain and agony to bring a Child(ren) into their family and are now
relying on Donor's assistance to help produce a Child(ren). It is also
understood by the Parties that grave, severe and intense emotional
stress, humiliation, and mental anguish may occur to either Party as a
result of a material breach by the other Party, and that the breaching
Party may be liable for intentional infliction of emotional distress.
F. It is understood by all Parties that ova donation and "in vitro"
and/or "in utero" fertilization are procedures within a new, unsettled,
and unchartered area of the law, and no warranties have been or can be
made as to the ultimate result, cost, liability, or obligation of the
Parties, as a result of the conduct contemplated by this Agreement
and/or that may ensue from any judicial, legislative, or administrative
process as a result of the conduct contemplated herein or with respect
to any arbitration/litigation necessary to establish any right of any
of the Parties per this Agreement, including parental rights and/or
financial obligations regarding any donated ova, embryo, or Child(ren)
born as a result of this Agreement.
G. WHILE THE PARTIES ARE ENTERING INTO THIS AGREEMENT WITH THE
INTENTION OF BEING FULLY BOUND BY ITS TERMS, THEY HAVE BEEN INFORMED
THAT THIS AGREEMENT IN WHOLE OR IN PART MAY BE DECLARED VOID AS AGAINST
PUBLIC POLICY BY THE LEGISLATURE OR COURTS IN WHICH ANY PARTY RESIDES,
OR HELD UNENFORCEABLE IN WHOLE OR IN PART BY SUCH COURTS. FURTHER, THE
PARTIES HAVE BEEN INFORMED THAT THIS AGREEMENT MAY NOT BE ENFORCED IF
SUCH ENFORCEMENT VIOLATES ANY NON-WAIVABLE CIVIL OR CONSTITUTIONAL
RIGHT OF ANY PARTY TO THIS AGREEMENT.
The Parties intend each part of this Agreement to be legally
enforceable and dispositive of the intent of the Parties with respect
to any Child(ren) conceived and born pursuant to this Agreement.
H. The Parties have been informed and advised of the California Supreme
Court decision in Johnson v. Calvert and agree the decision applies to
and governs the conduct contemplated herein to the extent the decision
was based upon the intent of the Parties as to parentage. The Parties
have been informed and advised of the California Fourth Appellate
District Court's decision in IRMO Buzzanca, and agree the decision
applies to and governs the conduct contemplated herein to the extent
the decision was based upon determination of parentage.
I. IT IS EXPRESSLY UNDERSTOOD BY THE PARTIES THAT THIS AGREEMENT IN NO
WAY CONSTITUTES PAYMENT FOR OR PURCHASE OF GENETIC MATERIAL OR A CHILD,
OR RELINQUISHMENT OF A CHILD.
J. The Parties understand the parentage and/or parental rights and
obligations regarding children born pursuant to this type of agreement
remains unsettled in California law at this time. Notwithstanding
passage of any legislation which may apply to the conduct of the
Parties under this Agreement, each Party hereby agrees their intent, as
set forth in this Agreement, shall govern any dispute, should such
occur. The Parties expressly agree herein their intent is for Intended
Mother to be the legal mother/parent of any Child(ren) born pursuant to
this Agreement, and that Intended Mother shall be treated in all
respects as the natural and legal mother/parent of any Child(ren)
conceived and/or born. The Parties expressly agree herein their intent
is for Intended Father to be the legal father/parent of any Child(ren)
born pursuant to this Agreement, and that Intended Father shall be
treated in all respects as the natural and legal father/parent of any
Child(ren) conceived and/or born. The Parties further expressly intend
the Donor is NOT the natural or legal mother/parent of the Child(ren)
conceived and/or born pursuant to the terms of this Agreement. The
Donor does NOT and shall NOT have ANY legal rights and/or obligations
to the Child(ren).
K. The Parties expressly understand and acknowledge that
notwithstanding California Penal Code Sections 181 (prohibiting
involuntary servitude) and 182 (prohibiting conspiracy to commit a
crime), said California Penal Code sections have never been applied to
NOW THEREFORE, in consideration of the mutual promises, terms,
conditions and covenants set forth above and hereinafter, and with the
intention of being legally bound thereby, the Parties agree as follows:
2. PSYCHOLOGICAL AND PHYSICAL EVALUATIONS
A. Donor agrees to, or has already undergone, a psychological and
physical evaluation prior to the Retrieval Procedure. Donor agrees to
undergo and/or has already undergone a comprehensive physical
examination. Donor also agrees to provide Intended Parents with
non-identifying comprehensive medical and psychological information
about herself and any and all biological children. In addition, Donor
shall execute any authorization necessary for the release of
non-identifying medical and psychological information, thereby allowing
any health care professional designated by Intended Parents to obtain
and review her non-identifying medical and psychological records.
B. Donor hereby warrants that any and all representations made in her
application to be an ova donor are true, correct, and complete.
Further, Donor warrants that she has made all relevant disclosures
regarding medical and family history in her application.
C. The Parties agree to submit for screening for sexually transmitted
diseases (including HIV) in order to protect the health of the Intended
Mother and Child(ren). In addition, Donor and Intended Parents agree to
undergo any medical testing that IVF physician, designated by Intended
Parents, (hereinafter "IVF physician", "physician", or "physicians") or
a health care provider designated by Intended Parents, deems necessary,
while this Agreement is in effect, at the expense of Intended Parents.
The Parties agree that all medical procedures and the Retrieval
Procedure shall be conducted in accordance with standards and
requirements of IVF Physician or a health care provider as designated
by Intended Parents. Donor does not currently have a sexual partner.
However, if Donor wishes to commence sexual relations with a new
partner (hereinafter referred to as "Donor's Partner"), Donor agrees
that Donor's Partner will agree to submit for screening for sexually
transmitted diseases (including HIV) and to undergo any medical testing
that IVF physician, designated by Intended Parent, or a health care
provider designated by Intended Parent, deems necessary, while this
Agreement is in effect, at the expense of Donor in order to protect the
health of the Intended Mother and Child(ren). Donor further understands
that she may not commence sexual relations with Donor's Partner until
physician provides a medical clearance for Donor's Partner. Any
relations prior to medical clearance by physician will be deemed a
material breach of this Agreement.
D. Donor acknowledges that she has the right, at Intended Parents'
cost, to request a psychological evaluation of Intended Parents by a
mental health care professional licensed to practice in the state
and/or country of their residence, and by her signature on this
Agreement hereby waives this right.
E. The Parties understand that by executing this Agreement, they are
agreeing to waive their doctor-patient privilege, permitting review of
medical information, and allowing written and verbal communication
between the evaluating health care provider and any Party to this
Agreement, as well as the Parties' attorneys, and, with respect to
Donor's medical information, ______________________________. The
Parties agree to execute a separate authorization for release of such
information, if so requested. With respect to Intended Parents, this
paragraph shall be limited solely to medical information directly
related to the Retrieval Procedure contemplated by this Agreement.
3. DONOR'S CONDUCT
A. Donor agrees not to ingest alcoholic beverages, use tobacco or
nicotine products, or use any illegal drugs from the date of execution
of this Agreement through completion of the Retrieval Procedure. In
addition, Donor agrees not to use any prescription or non-prescription
medication without the express written consent of the IVF physician,
from the date of execution of this Agreement (or sooner if advised by
IVF physician), through completion of the Retrieval Procedure. If any
cycle is canceled, Donor may resume use of prescription or
non-prescription medication as advised by physician, until two (2)
weeks before the onset of medication, Lupron or similar cycle-related
medication, other than birth control pills, for the next cycle through
completion of the Retrieval Procedure for that cycle.
B. Donor agrees to adhere to all reasonable medical instructions given
to her by any physician performing services related to the Retrieval
Procedure. Donor also agrees to be available for any and all routines
and procedures required by any physician performing services related to
the Retrieval Procedure prior to the Retrieval Procedure. Further,
Donor understands that it is absolutely necessary that she follows the
IVF physician's schedule for taking medication exactly and not deviate
from it unless instructed to do so by the IVF physician.
C. Donor agrees to abstain from sexual intercourse no less than two (2)
weeks before the onset of medication (Lupron) through completion of
Donor’s first menstrual cycle immediately after the Retrieval
Procedure. Donor does not currently have a sexual partner. If any cycle
is canceled, Donor and Donor's Partner, upon medical clearance from
physician pursuant to Section 2(C), may have monogamous, protected
sexual relations with each other, using condoms, as advised by
physician, until a minimum of two (2) weeks before the onset of
medication Lupron, or similar medication, for the next cycle through
completion of Donor’s first menstrual cycle immediately after the
Retrieval Procedure for that cycle. Donor will be in breach of this
Agreement if she becomes pregnant (resulting from consensual sexual
activities) during the term of this Agreement.
A. Donor is obligated to undergo one (1) completed Retrieval Procedure
which shall occur one (1) time within four (4) months of the signing of
this Agreement by all Parties.
B. Donor understands that any original date given to her regarding the
Retrieval Procedure is only a guideline provided to the Parties as a
courtesy to allow for personal scheduling, in order to minimize the
inconvenience of the Parties. Donor agrees to be available for
monitoring and to undergo the Retrieval Procedure on the date on which
it actually falls, regardless of whether it is different from the
tentative date(s) originally quoted to her except for the following
dates: _______________, in which Intended Parents understand that Donor
shall not be available for the Retrieval Procedure and will not be in
breach of the Agreement by her unavailability on the specified dates.
Donor shall be available all other dates for, including, but not
limited to, any and all routine procedures, monitoring, and the
Retrieval Procedure. However, if the first cycle is canceled, due to no
fault of the Donor, the Parties agree to work together in good faith in
rescheduling another cycle.
C. Intended Parents agree that the possibility exists that
sufficient ova may not be retrieved or fertilized, and that no viable
embryos may result from the Retrieval Procedure.
D. All Parties agree to sign reasonable consent forms provided by IVF
5. MATERNITY AND PATERNITY
A. Donor and Intended Parents agree that Intended Mother shall enter
Intended Mother's name as the Mother on the birth certificate of any
Child(ren) born from the donated ova. Donor and Intended Parents agree
that Intended Father shall enter Intended Father's name as the Father
on the birth certificate of any Child(ren) born from the donated ova.
The Intended Parents intend to use Intended Father's sperm to fertilize
the donated ova.
B. Donor agrees that it is in the best interests of the Child(ren) that
she not attempt to assert any maternity to the Child(ren) by any means,
including a maternity action or otherwise, or attempt to form a
parent-child relationship with the Child(ren).
C. Donor and Intended Parents understand that Intended Parents shall be
conclusively presumed to be the legal parents of any Child(ren)
conceived pursuant to this Agreement. Donor shall not have any parental
rights whatsoever. (See Johnson v. Calvert, ftn.10). (See also IRMO
Buzzanca). Intended Parents shall take parental responsibility and
custody of any Child(ren) conceived pursuant to this Agreement,
immediately after birth, regardless of whether the Child(ren) suffer
from any physical or mental disease or defect.
D. All ova, and subsequent embryos produced by the Donor pursuant to
this Agreement shall be deemed the property of the Intended Parents and
as such, the Intended Parents' shall have the sole right to determine
the disposition of said ova, genetic material, and embryos. However,
Intended Parents agree that in no event will the Intended Parents allow
any other party the use of said ova, genetic material, and/or resulting
embryos, except for a surrogate pregnancy for the Intended Parents,
without the express written permission of the Donor.
6. TERMINATION OF CUSTODY AND PARENTAL RIGHTS (IF ANY)
A. Donor agrees that it is in the best interest of the Child(ren) that
Intended Parents are the Child(ren)'s parents. Therefore, Donor agrees
that custody and control of any and all retrieved ova/ovum shall
immediately vest with Intended Parents at the time the Retrieval
Procedure is performed, and as each ova is retrieved from Donor's body
and placed in containers provided by the physician. Such custody and
control entitles Intended Parents to make all decisions regarding
disposition of embryos created from donated ova, including but not
limited to disposition, cryopreservation, transfer to Intended Mother's
womb or Surrogate's womb, termination of ova, genetic material, and/or
embryos, or abortion of fetus(es). However, Intended Parents shall not
donate ova, genetic material and/or embryos to another person or entity
without the written consent of the Donor.
B. Donor has not and shall not execute any conflicting documents
pertaining to this Retrieval Procedure only, including, but not limited
to, physician, fertility center, or hospital consent forms, wherein
custody of ova are given to physician, donor program, fertility center,
or hospital, or another party other than Intended Parents.
C. The Parties further understand and agree that Intended Parents shall
be conclusively presumed to be the legal parents of any Child(ren)
conceived pursuant to this Agreement, and Donor surrenders any and all
rights, if any, to any Child(ren) born from donated ova, including but
not limited to parental rights, custodial rights, and the right to name
the Child(ren). (See Johnson v. Calvert, n10). (See also IRMO
Buzzanca). Intended Parents shall take parental responsibility and
custody of any Child(ren) conceived pursuant to this Agreement
immediately, and Intended Parents' names will be placed on the birth
certificate of any Child(ren) born from the donated ova.
D. Donor agrees that she will not attempt to assert her maternity to
the Child(ren) by any means, including a maternity action or otherwise,
or attempt to form a parent-child relationship with the Child(ren). In
addition, Donor will not seek to view or meet with the Intended
Parents, the Child(ren), or their family, unless this provision is
waived in writing by Intended Parents.
E. Donor agrees that the conduct contemplated under this Agreement is
identical and/or the same as that involved in the donation of sperm, as
specified under California Family Code Section 7613, notwithstanding
the fact that the medical procedure necessary to obtain an ovum,
surgical removal of an ovum from Donor, differs from that for obtaining
sperm. Accordingly, Donor agrees that her rights, responsibilities, and
obligations shall be the same as a sperm donor's as defined under
California Family Code Sections 7613(a) and (b). Donor shall have NO
parental rights toward any Child(ren) conceived and/or born pursuant to
this Agreement and Intended Mother shall be treated in law as the legal
and natural mother/parent of any Child(ren) conceived as a result of
this Agreement, and Intended Father shall be treated in law as the
legal and natural father/parent of any Child(ren) conceived as a result
of this Agreement.
7. DEATH OF INTENDED PARENTS
A. If Intended Father should die after execution of this Agreement and
prior to relinquishment of custody of the ova to Intended Parents,
Donor agrees that relinquishment of custody shall be made to the
Intended Mother in accordance with this Agreement. If Intended Mother
should die after execution of this Agreement and prior to
relinquishment of custody of the ova to Intended Parents, Donor agrees
that relinquishment of custody shall be made to the Intended Father in
accordance with this Agreement.
B. If both Intended Parents should die after execution of this
Agreement and prior to relinquishment of custody of the ova to them,
then this Agreement shall terminate and custody shall revert back to
Donor. Donor will receive only the consideration already received
pursuant to this Agreement.
C. If both Intended Parents should die after execution of this
Agreement and relinquishment of custody of the ova to Intended Parents
but prior to fertilization of ova, then this Agreement shall terminate
and custody shall revert back to Donor.
D. If both Intended Parents should die after execution of this
Agreement, relinquishment of custody of the ova to Intended Parents,
and fertilization of ova, any remaining cryopreserved embryos shall be
A. The Parties agree that the consideration paid pursuant to Paragraph
8B of this Agreement constitutes reasonable monetary compensation for
all foreseen and unforeseen losses, costs, and expenses incurred, as
well as inconveniences, discomforts, and time rendered by Donor in
carrying out her obligations as set forth in this Agreement. Such
consideration includes, but is not limited to lost wages, childcare,
mileage, parking, inconvenience, pain and suffering, and for Donor's
assumption of all medical and psychological risks related to this
Agreement. Donor is not selling her genetic material, nor is she being
paid to relinquish her parental rights to any Child(ren) born from her
B. In consideration therefore, Intended Parents agree to pay for and/or
to Donor and/or to indemnify her for all of the following items, which
shall be held by a third party who is mutually agreeable to Intended
Parents and Donor prior to Retrieval Procedure:
i. Initial medical testing by IVF Physician to determine Donor's
suitability as an ova donor;
ii. The Retrieval Procedure including, but not limited to, the costs of
Physician, the medical facility, anesthesiologist and medication
iii. Donor will receive a total of $__________for the Retrieval
Procedure payable as follows:
a. Donor shall receive 25% upon the commencement of medication, Lupron
or similar cycle-related medication, other than birth control pills,
for the first cycle, as prescribed by Physician in preparation of the
Retrieval Procedure only. If the first cycle is canceled due to no
fault of the Donor and Donor commences medication, Lupron or similar
cycle-related medication, other than birth control pills, for another
cycle, Donor shall receive $250.00.
b. Contingent upon Donor providing her attorney with her original
signatures to this Agreement, Donor shall receive the remaining 75%
upon completion of the Retrieval Procedure, regardless of the number of
ova retrieved and/or are fertilized, and regardless of the outcome of
the attempted pregnancy.
c. If the Physician cancels the Retrieval Procedure, due to no fault of
Donor, after Donor's commencement of medication, Lupron or similar
cycle-related medication, other than birth control pills, and before
hCG is administered, Donor shall receive a cancellation fee of $500.00.
d. If the Physician cancels the Retrieval Procedure after hCG is
administered but before the Retrieval Procedure, due to no fault of the
Donor, Donor shall receive 50% of the remaining balance of her fee.
iv. Donor's attorney's fees for independent legal advice regarding the
meaning and consequence of this Agreement, not to exceed $195.00 in the
aggregate, unless rush fees are necessitated per __________ contract with Intended Parents;
v. Intended Parents shall not pay for Donor's legal advice regarding
breach or enforcement of this Agreement.
vi. Donor shall receive reimbursement for Donor and a travel companion,
travel companion for Retrieval Procedure only, for actual reasonable
transportation costs, including lodging, airfare, rental car, bridge
and road tolls, cab and bus fare, as applicable, and a food allowance
of $25.00 per diem for any travel day or full day for any out-of-county
appointments with Physician, taking blood tests, screening, and/or
undergoing the Retrieval Procedure. Donor shall receive reimbursement
for mileage should Donor drive to appointments and be required to
travel over thirty (30) miles one-way for appointments with her
monitoring and/or retrieval physician. Mileage shall not be included
for air travel and/or rental cars. Reasonable shall be defined as most
economical transportation and lodging that is appropriate for Donor and
vii. Donor's medical insurance deductible and co-payments
generated as a direct result of the Retrieval Procedure for a period no
longer than two (2) months from the date of the Retrieval Procedure.
viii. If Donor becomes uninsured through actions beyond her control,
Intended Parents agree to purchase a temporary policy to cover any
complications directly attributable to the Retrieval Procedure,
effective upon the commencement date of medication, for which any claim
or expense is submitted to the insurance company pursuant to the
insurance company's requirements but no later than two (2) months from
the date of the Retrieval Procedure.
ix. All medical expenses directly related to the Retrieval Procedure
for the two (2) months immediately following the Retrieval Procedure,
not covered by Donor's health insurance, so long as the claim or
expense is submitted to the insurance company pursuant to the insurance
company's requirements but no later than two (2) months from the date
of Retrieval Procedure.
INTENDED PARENTS' FINANCIAL OBLIGATIONS FOR THE DONOR ARE LIMITED TO
THE ABOVE REIMBURSEMENT ONLY.
C. Donor agrees to reimburse Intended Parents for all payments made
directly to her by insurance companies, if any, for medical expenses
paid by Intended Parents under the terms of this Agreement.
D. The consideration is not conditioned upon the number or condition of
ova retrieved or successful fertilization of ova. Intended Parents
assume the risk of receiving unsatisfactory ova.
IT IS EXPRESSLY UNDERSTOOD THAT THIS AGREEMENT IN GENERAL, AND THE
CONSIDERATION SECTION IN PARTICULAR, IN NO WAY CONSTITUTES PAYMENT FOR
GENETIC MATERIAL OR A CHILD, OR RELINQUISHMENT OF A CHILD.
9. ASSUMPTION OF RISKS
A. Donor warrants that she has had the medical and psychological risks
explained to her by a medical and psychological professional,
respectively. This includes, but is not limited to, the process of
enhancement of ovulation, the actual Retrieval Procedure, and possible
complications, including, but not limited to decreased fertility and/or
death. Donor understands and agrees to assume all of these risks
relating to Donor.
B. Intended Parents warrant that they have had the medical and
psychological risks explained to them by a medical and psychological
professional, respectively. This includes, but is not limited to, the
process of enhancement of ovulation and the actual Retrieval Procedure.
Intended Parents understand and agree to assume all of these risks
relating to Intended Parents.
INFORMED CONSENT, ADVICE, OR INFORMATION FOR ALL MEDICAL PROCEDURES IS
THE INDIVIDUAL RESPONSIBILITY OF THE PARTY UNDERGOING SUCH PROCEDURE.
C. Intended Parents understand and are aware of the risk that pregnancy
may result in genetic or congenital abnormalities including birth
defects or mental retardation. Intended Parents are also aware of and
understand that gender selection is not 100% effective. Nevertheless,
Intended Parents agree to accept full legal and parental responsibility
for any Child(ren) born from donated ova who possesses any such
abnormalities and/or is not the gender of choice.
D. The Parties understand that informed consent, advice or information
for all medical procedures is the individual responsibility of each
Party. In addition, the Parties understand that the attorneys,
psychotherapists, ___________, or any agent or employee of said
entities are not responsible for any medical advice and/or information
which may, should, or has been given to the Parties.
It is the responsibility of the Parties to this Agreement to consult
with a geneticist as to the risk of any such abnormalities and/or
10. HOLD HARMLESS
A. Donor warrants that she has consulted with a medical professional
who has explained the medical risks to her and is aware of all risks,
including possible decreased fertility and/or death, which may result
from the acts contemplated by this Agreement including, but not limited
to, risks involved in medical examinations, Retrieval Procedure, and
Donor hereby assumes all of the above stated risks, releases and holds
Intended Parents' harmless from any legal liability arising from these
B. Donor warrants that she has consulted with a psychologist who has
explained the psychological risks to her and is aware of all risks
associated with ova donation and the Retrieval Procedure.
Donor hereby assumes all of the above stated risks, releases and holds
Intended Parents' harmless from any legal liability arising from these
11. HEALTH INSURANCE
A. Donor warrants that she has existing medical insurance which covers
complications of a Retrieval Procedure and is obligated to maintain her
current medical insurance plan and amounts of coverage as her primary
insurance, or any plan that the Intended Parents purchase, during the
entire term of this Agreement.
B. Donor shall use her best efforts to maintain the current medical
insurance plan and coverage amounts during the entire term of this
Agreement. If Donor becomes uninsured, she shall immediately provide
written notice to the Intended Parents, in care of _______________.
C. Donor shall immediately advise Intended Parents of any and all
notices from the insurance company, including but not limited to
cancellation, past due payments, change in coverage (amendments). Such
notice may be made in care of ______________.
12. NO WARRANTIES
A. The Parties expressly understand and agree that neither
____________, the health care providers whose services are contemplated
under this Agreement, the attorneys, and/or the agents or employees of
such entities guarantee or warrant that (1) Donor will produce healthy,
viable ovum, and (2) the Child(ren), if conceived, will be physically
and mentally healthy and free of birth or congenital defects.
A. In the event of a material breach of the provisions of this
Agreement without legal excuse, in addition to all legal and equitable
remedies available to the non-breaching Party, the non-breaching Party
may cancel this Agreement without further liability.
B. If a Party believes that another has breached the terms of this
Agreement, they shall notify the other Party in writing, care of
___________________, and the breaching Party shall be given an
opportunity to cure within two (2) days of the notice. If a material
breach is subject to cure and the breach is cured within two (2) days
of the notice, the continued performance by the aggrieved Party shall
constitute a waiver. If the breach is not cured, the continued
performance of the aggrieved Party shall not constitute a waiver.
C. Donor shall be deemed to have breached this Agreement if, among
other things, Donor chooses to voluntarily withdraw from this program
without a medical reason, fails to follow Physician orders, fails to
comply with the terms of this Agreement, becomes pregnant through
consensual intercourse during the stimulation phase, or fails to be
available for treatments or procedures as scheduled, including but not
limited to the Retrieval Procedure. In the event that Donor breaches
this Agreement, in addition to all other remedies and damages, she
shall reimburse any and all expenses incurred by the Intended Parents,
which include, but may not be limited to, the payment of
$_______________, medical costs, the cost of the medication, as well as
legal fees, and any other expenses necessitated by Donor's initial
agreement to this Agreement, plus interest at the legal rate from the
date the monies were placed in trust until they are repaid.
D. In no event shall any Party be deemed to have materially breached
this Agreement where the inability to perform timely is due to a cause
which is beyond the control of the Party (e.g. hyperstimulation,
under-stimulation, a prohibitive medical problem of Intended Mother or
Donor, a serious injury to any Party, a natural disaster or any other
act of God). Failure to be available for the Retrieval Procedure as a
result of Donor's work or school schedule or another reason or
circumstance that could have been prevented by better scheduling shall
not be considered "beyond the control" of Donor.
E. The non-performing Party(s) agree to perform as soon as is possible
given the specific circumstances. However, should the Intended Parents
determine that the delay has irreparably jeopardized the purpose of
this Agreement, the Intended Parents shall notify the Donor of this
determination, as well as the cancellation of this Agreement.
Termination of this Agreement pursuant to this Paragraph shall
supersede the requirements pertaining to "cure", as set forth in
F. If the Intended Parents terminate this Agreement, due to a material
breach by Donor, all funds remaining in excess of those sums necessary
for payment of expenses already incurred shall be returned to the
Intended Parents forthwith upon their demand.
G. The Parties agree that certain terms of this Agreement, including
but not limited to the terms relating to custody and parental rights,
and the rights of the privacy of the Parties, will survive any
termination of this Agreement by breach or otherwise. In addition,
those terms relating to Intended Parents' parental rights and their
right to sole and exclusive custody of any Child(ren) born as a result
of the procedures contemplated by this Agreement may not be diminished,
disturbed, or otherwise affected by any actual or alleged breach.
H. A breach by either Intended Parent shall be considered a breach by
both of them.
14. CONFIDENTIALITY/PRIVACY RIGHTS
A. Confidentiality of the Parties' identity is highly valued in this
situation, and the Parties acknowledge and agree that it is in the best
interest of the Child(ren) that the identity of the Parties shall be
held in the utmost confidence and will remain private. Further, the
Parties agree that use of first names and/or aliases and registrant
numbers assigned to the Parties by _____________ shall be deemed
legally binding signatures.
B. The Parties shall maintain the confidentiality of each Party's
identity among themselves. The Parties understand that the
confidentiality provided for herein in these paragraphs does not
contemplate speaking with friends and relatives, the Parties'
respective attorneys, physicians or other professionals, the surrogacy
coordinator, _____________, and/or any other persons associated with
any aspect of this Agreement about their own involvement in the
gestational arrangement. Such conversations are permitted and do not
constitute a breach of the confidentiality, provided that the identity
of the other Party(s) is not disclosed.
C. In the event any claim or litigation arises out of the performance
of this Agreement, the Parties agree that they and their heirs, assigns
and representatives, including their legal counsel, will take all
reasonable steps to maintain such confidentiality and the rights of
privacy of the Parties, including but not limited to: (a) requesting
court records be sealed; (b) requesting the court impose gag orders;
and (c) requesting the court take all necessary steps to protect the
Parties' identities from disclosure to the public and/or news media.
15. FUTURE CONTACT
A. The Parties agree that there will be no future contact beyond the
term of this Agreement with the exceptions listed in Section 16.
16. CHANGES IN CIRCUMSTANCES/NOTICE
A. During the term of this Agreement, the Parties agree to immediately
inform each other in writing, care of ___________, of any material
change in their circumstances which may reasonably affect this
Agreement or the health and well-being of any Child(ren) born as a
result of this Agreement. These changes include, but are not limited
to, change of address, illness or death of a Party or Party's family
member, loss of employment, change in insurance coverage, pregnancy,
inheritable illness, and/or exposure to communicable illness.
B. Due to the genetic connection of the Child(ren) to the Parties, it
may in the future become necessary to obtain medical information from a
Party to this Agreement. Therefore, Donor agrees to inform
______________ or its designated agents or employees of any change of
address in perpetuity. If medical information must be obtained from
Donor in the future or at anytime, Donor agrees to furnish such
information, and to sign a non-identifying Release of Medical Records,
if required. Further, Donor agrees to contact Intended Parents, through
______________, should any medical condition or disease arise that
might be of concern to the Child(ren)’s health.
C. The Parties acknowledge that the sharing of genetic material when
combined with anonymity creates the potential that children who are
genetically related may meet in the future and inadvertently develop a
relationship. Therefore, in order to avoid future inadvertent and
inappropriate relationships between genetically-related individuals,
the Parties agree to inform and/or release to the other Party (care of
_____________), the gender and birth date of any and all Child(ren)
born of the donated ova, as well as any children born to the Donor.
A. The term of this Agreement shall begin with the execution date and
end with the completion of the Retrieval Procedure or _______ months
from the execution date on this Agreement, whichever first occurs.
However, the term set forth herein is not intended to abridge the
Parties' rights and/or obligations hereunder which may extend beyond
this period, including but not limited to, parental rights and
responsibilities, confidentiality, financial responsibilities, and
18. TERMINATION OF AGREEMENT/CANCELLATION OF CYCLE
A. At any time prior to the active preparation of Retrieval Procedure
(e.g. the beginning of Donor's ingestion of medication for said
Retrieval Procedure) either Party may terminate this Agreement by two
(2) days written notice to the other Party care of ______________. If
Intended Parents terminate this Agreement pursuant to this provision,
Intended Parents shall have no further obligation or liability. If
Donor terminates this Agreement pursuant to this provision, Donor shall
be liable to Intended Parents for reimbursement pursuant to Section 13.
B. The Parties agree that certain terms, including but not limited to,
custody, parental rights, and the right to confidentiality and privacy
shall survive any termination of this Agreement, whether by breach or
other circumstance. Further, any terms relating to the Intended
Parents' parental rights and right to sole and exclusive custody of any
Child(ren) born of the Retrieval Procedure contemplated in this
Agreement, shall not be diminished, disturbed or otherwise affected by
any actual or alleged breach.
C. The Parties agree and understand that Donor is available for one
cycle attempt only for the Retrieval Procedure. If a cycle/Retrieval
Procedure is canceled, Donor is not available for another
19. GOOD FAITH PERFORMANCE
A. The Parties shall execute all such further and additional documents
as shall be reasonably, (i) convenient, (ii) necessary, or (iii)
appropriate to carry out the provisions of this Agreement in good faith.
20. DISPUTE RESOLUTION
A. MEDIATION: The Parties agree to mediate any dispute or claim arising
between them from this Agreement or any resulting transaction PRIOR to
bringing any court action. Mediation is a process by which parties
attempt to resolve a dispute or claim by submitting it to an impartial
neutral mediator, who is trained and authorized 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 among the Parties.
B. IF ANY PARTY COMMENCES AN ARBITRATION OR COURT ACTION BASED ON A
DISPUTE OR CLAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST
ATTEMPTING TO RESOLVE THE MATTER THROUGH MEDIATION, THEN IN ADDITION TO
ANY OTHER REMEDIES AVAILABLE AT LAW OR AT EQUITY, IN THE DISCRETION OF
THE ARBITRATOR(S) OR JUDGE, THAT PARTY SHALL NOT BE ENTITLED TO RECOVER
ATTORNEY'S FEES, EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT
PARTY IN ANY SUCH ARBITRATION OR COURT ACTION.
C. EXCLUSIONS FROM MEDIATION: Any matter which is within the
jurisdiction of a probate or small claims court, is excluded from the
above mediation paragraphs. The filing of a court action to enable an
injunction, or other provisional remedy, shall not constitute a
violation of this section.
D. In the event litigation is required to interpret or enforce the
terms of this Agreement in a court of competent jurisdiction, the
prevailing Party shall be entitled to reasonable attorney's fees, court
costs, and to any other relief to which the court determines the said
Party is entitled; provided that the prevailing Party attempted to
comply with the Mediation requirements of this Section before
21. GOVERNING LAW
A. The validity of this Agreement and any of its terms or provisions,
as well as the rights and duties of the Parties under this Agreement
shall be construed pursuant to, and in accordance with, the laws of the
state of California. Any dispute resolution or litigation arising from
this Agreement shall be brought in the state of Missouri in the county
in which the Intended Parents reside, unless the Intended Parents
choose otherwise. If Intended Parents move to a jurisdiction outside
the continental United States, any dispute resolution or litigation
arising from this Agreement shall be brought in the state in which
Donor resides, unless the Parties agree otherwise.
22. INDEPENDENT LEGAL COUNSEL
A. The Parties acknowledge that they have had the opportunity to
consult with and/or have been represented by separate legal counsel in
the negotiations of this Agreement, and that their counsel was of their
own choosing. The Parties further acknowledge that they have read this
Agreement, that they have been advised and that they understand its
meaning, as well as its legal and other consequences. The Parties are
signing this Agreement freely and voluntarily. In addition, the Parties
acknowledge that they have participated or had an opportunity to
participate in the drafting of this Agreement. As such, in the event of
an ambiguity, it shall not be construed against any Party.
B. Attorney representation of clients is deemed completed at the time
all Parties sign this Agreement.
23. TAX IMPLICATIONS
A. This Agreement does not instruct the Parties, nor have the attorneys
advised the Parties, on the issue of taxation of any payment made
pursuant to this Agreement, and this Agreement is not dependent on any
particular tax characterization of any payment made hereunder. All
Parties understand that any and all tax liability incurred as a result
of this Agreement is their own responsibility and duty and have been
advised to consult with a tax specialist. In addition, it is hereby
understood that Donor is not considered to be an employee of any of the
24. GENERAL PROVISIONS
A. Entire Agreement This written Agreement is the entire agreement
among the Parties. No other promises, representations, inducements,
understandings, contracts, agreements, or commitments, written or oral,
exist among the Parties. In addition, the Parties declare that the
terms of this Agreement are contractual and not mere recitals. This
Agreement applies to, inures to the benefit of, and binds all Parties
hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns.
B. Amendment This Agreement shall only be amended by a written
agreement signed by the Party(ies) to be bound.
C. Severability If any part of this Agreement is found by a court of
competent jurisdiction to be void or unenforceable, the remaining
sections of this Agreement shall remain in full force and effect.
D. Counterparts It is understood and agreed that this Agreement may be
signed in several counterparts, each of which shall be deemed to be an
original, although each may be differently formatted, with different
pagination, due to email or facsimile formatting, but all of which
taken together shall constitute one and the same document.
E. Original and Copies Upon execution of this Agreement, the original
counterparts for all Parties shall be maintained by the Intended
Parents, with copies given to Donor.
F. Time is of the Essence Time is of the essence of this Agreement.
G. Effect of Captions The captions are for the convenience of the
Parties only and are not meant to limit the context or content of the
25. HIGH RISK ACTIVITIES AND SEXUAL RELATIONS
A. The Parties assert that they have not engaged in high risk sexual
intercourse or other high risk activities, including intravenous drug
use, promiscuous homosexual activity, or prostitution since they have
been tested for sexually transmitted diseases, including HIV.
B. The Parties agree to remain monogamous with the spouse/partner named
herein from the date of testing through completion of the Retrieval
Procedure or termination of this Agreement, whichever first occurs.
Donor agrees to refrain from any conduct where the transmittal of a
sexually transmitted disease could occur except for activity pursuant
to Sections 2C and 3C.
26. INTEGRATION AND UNDERSTANDING
A. The Parties declare, warrant, and represent this Agreement is the
entire Agreement and understanding between the Parties; that no
inducements, promises, understandings, or agreements not contained in
this agreement have been made to them; and that all the terms and
conditions contained herein are contractual. Prior warranties,
representations, agreements, understandings, contracts, and other
commitments, whether written or oral, are either waived by the Parties
herein or are merged into this Agreement.
B. This Agreement applies to, inures to the benefit of, and binds all
Parties hereto, including their heirs, administrators, executors and
C. The Parties declare, warrant, and represent that they have carefully
read, reviewed, and understand all terms and conditions of this
Agreement and that they agree to be bound by all the terms and
conditions herein, as evidenced by their signature hereto, and have
executed this Agreement freely and without undue influence or duress.
D. This Agreement has been drafted and
shall be deemed executed in Tustin, California, United States of
America, and it is the express intent of the Parties and a material
term of this Agreement that this Agreement shall be governed by,
construed, and enforced in accordance with the laws of the state of
California, United States of America.
E. All Parties declare under penalty of perjury under the laws of the
state of California, United States of America and the state and/or
country of each Party's residence that the foregoing, and any other
information personally known to the Parties, and provided to each other
is true, correct, and complete.
____________________ Donor's Spouse, if applicable
____________________ Intended Mother
____________________ Intended Father
©2001 Family First Fertility
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