Egg and Embryo Donation

eggIf you are

  • A donor who will provide an egg or embryo
  • A heterosexual couple with egg related or egg and sperm related fertility issues
  • A gay couple or a single dad-to-be having a child with the help of a surrogate
  • A single mom-to-be who cannot use her own eggs
  • Considering egg or embryo donation

This section is for you.

An egg donor is a person who provides her ova for use by someone else in assisted reproduction. An embryo donor is usually a couple who gives embryos they do not need for their own reproductive use to another person or couple to use to conceive a child.

(Where the egg or embryo is for the person or couple’s own reproductive use, then they are not a donor according to BC’s Family Law Act)

Because eggs must be surgically extracted from a woman’s ovaries, a fertility clinic or egg donor bank is always involved in egg and embryo donation. Egg donation is a much more significant health decision for a woman than sperm donation is for a man, and it is really important to consider the risks beforehand.

Under BC’s Family Law Act, a donor is not (by reason only of the donation) the child’s parent. Instead, the parents are the birth mother and the person who was married to or in a marriage-like relationship with the birth mother (for this page, the “spouse”) when the child was conceived, unless the spouse did not consent to be the parent or withdrew consent to be the parent prior to conception.

That being said, if the donor, the birth mother, and the birth mother’s spouse make an agreement before conception that they will all be the parents of the child, then they will all be the legal parents. This creates the potential for a child to have more than 2 legal parents.

If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

Do we need a donor agreement for a known egg or embryo donor?
If the donor is also going to be a parent, then a written multi-parent agreement before conception is required. However, if the donor is not going to be a parent, then because BC’s Family Law Act specifically says that a donor is not a parent, a donor agreement is not legally required.

However, there are reasons apart from parentage for choosing to have an agreement. We recommend donor agreements because

  • An agreement summarizes the law so everyone is clear and there is no misunderstanding: the donor has no obligation to support the child, and no claim to a parental relationship with the child just because they are a donor.
  • An agreements helps everyone involved clarify their expectations about who is going to do what before, during, and after the pregnancy, for example with respect to getting testing for inheritable or transmissible conditions.
  • An agreement will lay out the agreement about reimbursing the donor’s expenses.
  • An agreement also clarifies expectations about the donor’s role in the child’s life and confidentiality or sharing of information – sometimes, in the course of negotiating an agreement people discover that they have a much different vision of the future. Better to know this now than later.
  • An agreement will also lay out how what will happen with any eggs or embryos that are not needed.
  • An agreement specifies what happens if a baby is born with a birth defect or condition which the donor did, or did not, know about.
  • An agreement can specify that the donor can also be listed as parents on the child’s birth certificate.

  • How do we make an egg or embryo donor agreement?

    All of the lawyers in the Fertility Law BC working group do donor agreements. The lawyer you go to will send you a questionnaire about who the donor will be, and who the parents will be. The lawyer will likely also let you know some questions to talk over with the other person or people involved, because it is cheaper for you if you know those answers before embarking on drafting an agreement.

    You will bring the questionnaire to a meeting with the lawyer. The lawyer will explain the process, including how to register the birth of the baby. Then they will draft up the agreement for you.

    The other party to the agreement will need to get independent legal advice about the agreement.

    The laws about who is a parent vary across Canada. So one of the things you will want to be sure about s that the baby will be born in BC; or make provisions for what happens if the baby is born elsewhere.