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OVERVIEW

During the course of a family building journey, there will be a need for legal intervention when a third party is utilized.  A contract will be needed when utilizing a donated gamete and/or a surrogate/gestational carrier in order to fully memorialize the intention of all of the parties.  In such contracts, there is a complexity of foreseeable and unanticipated issues to be addressed in order to fully protect the parties involved and should be handled by an experienced attorney in this area of law. Please see below for a variety of situations and contracts which may be appropriate for your particular situation.


A contract is needed when a prospective parent(s) desire to receive donated sperm from a sperm donor. In such instance, the prospective parent(s) and donor need to set forth their intentions, which is for the donor to relinquish his rights and obligations to the donated gamete and establish the recipient(s) rights and obligations to the donated gamete and any child born as a result thereof. The resolution of the legal issues will allow the medical providers to proceed with the usage of such donated sperm.



A contract is needed when a prospective parent(s) desires to receive donated eggs from an egg donor. The needs will differ depending upon the relationship of the parties, but essentially, the premise of the contract will be for the donor to relinquish her rights and obligations to the donated gamete and to establish the rights in the recipient(s).  The resolution of the legal issues will allow the medical providers to proceed with the usage of such donated egg. (Note: a different approach is taken when in a same sex relationship the donor is donating her eggs to her partner. See co-parenting agreements below.)



A contract is needed when a prospective parent(s) desires to receive previously unused cryo preserved embryos that did not originate from the prospective parent(s), from the individual or couple to whom the embryos belong. In such instance, the prospective parent(s) and donor need to memorialize the intention of the donor(s) relinquishing any rights and obligations to the donated embryos and to establish the rights and obligations of the donated embryos and any child born as a result in the recipient parent(s). The resolution of the legal issues will allow the medical providers to proceed with the usage of such donated embryos. (Note:  the Official Code of Georgia has a provision which allows for the adoption of donated embryos.  This is not mandatory, but does exist to offer the recipient parent(s) the additional protection of a court order establishing them as the parents. See O.C.G.A. 19-8-41).



In the event a couple has unused embryos in a state of cryopreservation, the embryos are theirs to use together.  In the event that couple is no longer united, one individual is not allowed to use the embryos for purposes of having a child without the written consent of the other individual.  Appellate Courts across the nation who have dealt with this situation have all ruled against the concept of “forced procreation” which would essentially force a person to be a parent to a child with whom he or she is no longer involved.  However, with the written consent of the other party through an Embryo Utilization Contract, a physician will be able to proceed with the embryo usage.



An unmarried couple desires to conceive a child using the eggs or sperm from their partner. In such instance, it is the intention of the donating party to retain all rights and obligations to the donated gamete and thus “co-parent” the resulting child with the recipient partner.   The resolution of the legal issues will allow the medical providers to proceed with the usage of such donated gamete.



This is utilized when both of the parent’s genetic material (eggs and sperm) are used in the formation of the embryos to be transferred into the gestational carrier who will carry the child to term.  A detailed contract is necessary which fully memorializes all of the intentions of the parties and covers areas such as compensation/reimbursement, insurance, medical decisions, etc.  It is very important that all issues are fully resolved as the terms of the contract will dictate the pregnancy experience.  Once all of the legal issues are resolved and a contract is in place, the attorney will provide the physician with a legal clearance letter and the medical procedures will begin.



This is necessary when a when the parent(s) desire to use donated genetic material (eggs, sperm or embryo) in order to produce viable embryos suitable for transfer into the gestational carrier who will carry the child to term.  A detailed contract is necessary which fully memorializes all of the intentions of the parties and covers areas such as compensation/reimbursement, insurance, medical decisions, etc.  It is very important that all issues are fully resolved as the terms of the contract will dictate the pregnancy experience.  Once all of the legal issues are resolved and a contract is in place, the lawyer will provide the physician with a legal clearance letter and the medical procedures will begin.



Although a detailed contact is necessary in any surrogacy arrangement, it is critically important in dealing with a tradition surrogacy in which the surrogate/carrier is also serving as the egg donor.  Given that there is a genetic connection of the child she is carrying for the intended parent(s), the intention that she is doing so as a “pre-planned adoption” must be established in addition to all of the other elements of a surrogacy arrangement.  Once all of the legal issues are resolved and a contract is in place, the lawyer will provide the physician with a legal clearance letter and the medical procedures will begin.



During any surrogacy arrangement, you should keep your attorney up to date on the progress of the pregnancy in order to timely establish parentage within the intended parent(s).  No later than the beginning of the third trimester it is necessary to petition a court of proper jurisdiction to seek an order that will rebut the legal presumption that the surrogate/gestational carrier is the mother of the child by virtue of the fact that she is the birth mother (and that her husband is the father based on them being married), and establish the intended parent(s) as the legal parent(s) in order to clarify for the State, the  hospital and the medical providers issues as to medical decisions, insurance, parental rights and issuance of the birth certificate(s)



This document allows someone to make health care decisions for the surrogate in the event circumstances prevent her from doing so herself.  It will deal with issues following the unlikely death of the surrogate, as well as medical treatment decisions, in the event they are needed (Example: life support continuation or termination).  This someone, usually the surrogate’s husband, partner or other family member and the surrogate must fully discus these delicate issues, and the attorney will memorialize the decisions as dictated by Georgia law.



This document is beneficial to a surrogate/gestational carrier in order to designate the individual who will make decisions on her behalf if she is unable to do so herself.   Additionally, it is beneficial to have for the surrogate’s husband in the event he is unable to sign necessary documentation related to the surrogacy process.



Any individual or couple expecting a child is in need of setting forth their desires in the event they are hospitalized or deceased in order to allow their desire to carry forth.In the event you are hospitalized and in a relationship, although not legally married, such documentation is beneficial in allowing your partner visitation during hospitalization.


550 Kennesaw Ave NW # 700
Marietta GA 30060
(678) 797-1213

Fax: 770-884-8185

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