Egg Donor & Surrogacy Law Blog : Surrogacy and Egg Donation Lawyer & Attorney : Theresa Erickson : Erickson Law Firm : Practicing Reproductive and Gestational Carrier Law

In an order signed Friday in the District Court for the Northern District of California, Judge Fogel granted the Defendants' Motion to Dismiss, but ruled that the plaintiff, the Options National Fertility Registry, could file another amended complaint within 20 days.. 

For more information on this case see Suit Over Alleged Egg-Sharing Tossed Once Again

"Options, a bankrupt international registry of data pertaining to egg donation arrangements, filed the suit in October 2007 on behalf of a group of donors whose eggs the defendants, two organizations that represent doctors and clinics, allegedly gave to unknown and unauthorized recipients via an industrywide practice known as “egg-sharing,” in violation of legally binding contracts.

The suit alleged that from 1992 through 2003, the defendants and Options had written and oral contracts by which the defendants agreed not to transfer, donate, sell, give or otherwise dispose of any eggs or embryos of the donors to anyone other than recipients specifically designated in profile transfer requests signed by doctors.

But from 1992 to the present, the defendants have breached those contracts by engaging in egg-sharing without obtaining the consent of the donors at least two weeks prior to egg retrieval, Options alleged.

Options claimed it did not learn of the practice until January 2005, when a doctor testified that infertility doctors were encouraged by the defendants to participate in egg-sharing, according to court documents.....

The donors also fear that their offspring may have increased risk of unknowingly engaging in incestuous relationships because of the defendants' actions, according to the complaint.

In addition to punitive damages and attorneys' fees and costs, the suit sought to enjoin the defendants from engaging in unauthorized egg-sharing.

After Judge Fogel dismissed the complaint in October, ruling that the court lacked subject matter jurisdiction, Options filed an amended complaint in January, alleging the same state law claims for breach of contract, fraud and others, as well as two federal claims for civil Racketeering Influenced and Corrupt Organizations Act and antitrust violations.

The amended complaint alleged racketeering because the defendants violated Options' and the donors' rights and property interests, as well as antitrust violations because Options was driven out of business as a result of the defendants' slanderous statements.

In dismissing the amended complaint, Judge Fogel concluded that the Options' claims under the federal statutes were “so devoid of factual support as to border on the frivolous.”

Although Judge Fogel said it was dubious that Options could allege a viable racketeering or antitrust claim in the case, he granted the plaintiff leave to amend the complaint yet again."

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Well, after all of the news of recent of egg donors and the economy being shoved down our throats from press releases, news articles and news programs, I woke up this morning with a new concern about all of this. 

Shouldn’t we be concerned about this rise in donors? Who is Exploiting Whom, if at all? That is why we, as an industry, need to make certain that no one is exploiting anyone. In fact, we need to ensure that there is no abuse on either side – by the agencies, lawyers, parents, and clinics, as well as on the side of the donors themselves. As a Reproductive Lawyer and the Founder of an Egg Donation & Surrogacy Agency, I have a vested interest in ensuring that this is done sooner than later.

With that in mind, I think that we need to be concerned that the state of the economy may actually cause more women to become donors by not thinking about what they are actually doing and by not considering the risks. Which, in turn, can leave open the possibility that the donors may start the process, get accepted, get selected by parent(s), undergo testing at the cost of the parent(s), who then back out once they realize what this medical procedure actually entails? Or, donors who go forward because they need the money without really thinking through what they are doing? Who loses in this case? Who suffers emotionally? At what cost?

On the other end of the spectrum, shouldn’t we also be concerned about the donor’s authenticity? Desperation creates the environment for changing one’s history, medical or otherwise – does it not? If one needs money so badly, why not make oneself into the poster of good health, good family history and a great education?

With these points in mind, I want to make certain that those couples/individuals looking for an egg donor or the donors looking to donate, do their research first on the agency or clinic where they select their donor or select to be a donor as follows: 

1.            Has the agency verified the donor’s credentials? 

2.            Have those credentials been sent directly from the education institute or college or were they sent directly by the donor? 

3.            Has the agency obtained the donor’s medical records from previous cycles?  Has the donor actually been screened by the agency? 

4.            What does their actual screening consist of? Remember, numbers are not everything, as quality is much more important than quantity – so it is important to question those agencies that claim to have hundreds of new donors from the economy. 

5.            Has the agency, lawyer, or clinic provided you, as the potential donor, an opportunity to speak with a physician regarding the potential risks? Have you had the opportunity to speak with a psychologist? Have you had all of your questions answered?

Yes, the economy can certainly cause a woman to make a decision to become an egg donor (or a surrogate mother) for the compensation that it provides, but also make certain that these donors (and surrogates) are not just in it for the money – they need to understand the entire process and they are moving forward with a clear sense of how they are helping someone create the family that they have always wanted and dreamed of, as well as understand all of the potential medical and psychological risks that are actually involved.   

As an industry, we all need to make certain that all parties, the donor, the parents and the future child, are protected. I know what my staff and I do to ensure that this is taken care of. In fact, we continually are revising and adjusting our protocol to adapt to change in the industry. Shouldn’t we all?

Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer 
www.EricksonLaw.net

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Fertility doctors have denied that human eggs were mishandled

By TERI SFORZA

The Orange County Register

Prominent fertility doctors nationwide have engaged in the unauthorized and illegal sharing of human eggs for more than a decade, according to a federal lawsuit filed on behalf of a defunct local firm and its egg donors.

The suit, filed earlier this month in U.S. District Court in Northern California, accuses the fertility industry of trying to cover up "a major medical ethics scandal" and seeks at least $5 million on behalf of Options National Fertility Registry and its donors.

It names the American Society for Reproductive Medicine, the Society for Assisted Reproductive Technology and 102 doctors as defendants.

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