Contemplating Life, Death, and Divorce while Reviewing Our Egg Donor Contract

My husband and I are thrilled that our journey to fatherhood has hit another milestone.  Unfortunately, that milestone involves another lengthy legal contract review.

I strongly believe in the importance of legal advice and detailed contracts throughout the IVF and surrogacy process.  There is no substitution or way to expedite these legal proceedings, no matter how tedious.  

Thus far, my husband and I have been confronted with four of our anticipated six major contracts.  The first three were the contracts with our clinic, agency, and lawyer, and now we are reviewing the contract with our egg donor.  After this, there will be the ‘mother’ of all contracts with the gestational carrier (pun intended), and, finally, the crucial contracts and documentation for the pre-birth order and parentage.

However, the egg donor contract is our first contract where there are two independent parties:  Us as the intended fathers and the egg donor.  It’s great that we are both represented separately by our own attorneys, so there are no conflicts of interest and everyone has the right to express their wishes.  I believe this separation of representation is critical for any ethical journey.  

As I mentioned, the egg donor contract is much less complicated than the one for the gestational carrier, largely because the responsibility of the egg donor is more medically straightforward.  However, I wasn’t expecting this contract to bring up several important reflections on our own mortality, relationship, and future, and so I wanted to take this opportunity to share some reflections that are important for any intended parent to think about on their own journey.

Our Mortality 

The most shocking aspect to the contract was the necessity to contemplate my husband’s and my untimely demise.  

After thinking about this for a moment, it does make complete sense.  We are starting the process of having a child, and so we have to have contingency plans for what would happen to that child in the case that we both were to die.

However, that contingency planning starts even before that child is, in fact, a child.  So, the contract has us decide what would happen to the eggs if we were both to die.  It also goes one step further and asks what should happen to the embryos if we both were to pass away before an implantation.    

Do we want the eggs or embryos destroyed?  

Do we want them donated to another intended parent?

Do we want to give them to the clinic or a university to be studied?

These are just a few of the possible options that we were presented with from our lawyer, but the crazy thing about contracts is that you can decide whatever you want.  We can put in writing that we want the eggs to be scattered along the Baltic Sea outside of Stockholm, and even though something slightly outrageous like this could be challenged or contested, the interesting part about the contract process is that you have the freedom to suggest any scenario that you want.

Our Relationship

The next major emotional hurdle in reviewing the egg donor contract was contemplating the reality that my husband and I could get divorced.

No matter how remote this possibility is, you are forced to consider it when reviewing and editing the contract because you have to have answers to the questions as to who can utilize the eggs or embryos in the case that we are no longer together.

Do we divide the eggs or embryos, especially if we have fertilized half with each of our sperm?

Do we destroy them?

Do we allow either person to utilize them without any restrictions?

I enjoy nothing less than imagining my life without my husband, but there is also the chance that one of us could die.  In that case, would we want the other to continue on our journey alone and still have children with this egg donor?

These are questions that are specific for couples who go through IVF.  In traditional, heteronormative childbearing, divorce and death have more clear outcomes.  Obviously, there could be a custody battle of an unborn child if a couple gets divorced during the pregnancy, but that is not the same as deciding if there will be a child at all in the case of a divorce.

Our Future

Lastly, I wanted to discuss the reflection I had about our future family while reviewing the contract.  

There are no guarantees in the process of IVF and surrogacy, just like in life.  However, contracts like to make this exceptionally clear.

And so - even at this early stage of the egg retrieval - we have to confirm our understanding that we may have a child born who is unhealthy.

This is always a very hard thing to think about.  No one wants to focus on the remote possibilities of having a child with a disability, but it is something every intended parent has to contemplate.

As someone who had two handicapable cousins, I have some experience with the complexity and beauty of children like this.  It’s certainly not ‘normal,’ but what is ‘normal’ anymore and who wants to even be that?  

We are a gay American couple living in Sweden and having a child through IVF and surrogacy.  Our child has no chance to be ‘normal,’ so if they also happen to be born with anything that could be labeled a ‘disability,’ then we would adjust and be more than okay with that.

Even though I started this article lamenting yet another tedious contract review, I can be nothing except excited and thrilled that we are at this stage in the process.  As I wrote about previously (https://www.babymoonfamily.com/original-articles/waiting-game), there has been a longer period of inactivity in our journey before this, so this forward movement is most welcome.  

Having reviewed multiple contracts now, I will say that my husband and I have a tactic that works for us.  We both review the contract separately, and then write down our questions for each other and the lawyer.  Then, we schedule some time to come together and go over all the discussion points and compose the response to the legal team.

This gives us each time to sit with our thoughts, write down any and all questions, and then come together to go over everything.  Initially, it felt a little ‘corporate,’ as we were scheduling a meeting on our shared calendar, but it has really worked.  

We have learned from each other’s individual interpretations of the legal documents, and we have aligned on these challenging questions related to our (hopefully long) lives, (possible early) deaths, and (very unlikely) divorce.

At every stage, the process of becoming a father feels more real, and I am so excited to be on this journey with my husband.