Many women between the ages of 20 and 30 see frequent targeted advertisements on social media advertising for fertility clinics and the opportunity to make substantial money (often $10-$100,000) for donating eggs. They often say “Egg Donors Wanted—Make Up to $100,000” or, in the case of donors from minority backgrounds, something more specific like “Jewish Egg Donors Needed.” In investigating what egg donation looks like and means from a legal perspective and the process in practice, there are many guidelines around who can donate and what the donation process looks like. Egg donation falls under the legal umbrella of assisted reproductive technologies (ARTs), which are fertility treatments that help people who want to be parents have children despite fertility-related barriers including, but not limited to, infertility of one or both parents, risk of genetic disease, lack of one type of gamete (i.e., parent(s) with egg and without sperm or vice versa), age of parent, and others. I will be writing a series of blog posts about ARTs with a focus on gamete donation, or the donation of egg and sperm. “Gamete” is the biological term for egg or sperm cells, the cells that have half the amount of DNA as a somatic cell, or cell from the body, and that can be used to make offspring. Each blog post will tackle a different issue related to these technologies, including gender biases in donation proceedings, comparing egg donation to sperm donation, heteronormativity in ART policies broadly, and parentage laws related to ARTs that use gamete donation.

Gender differences in gamete donation guidelines can perpetuate gender norms

The American Society for Reproductive Medicine (ASRM) is the oversight body that releases guidelines for gamete donation. However, while these guidelines are generally followed by clinics and donation agencies, they are not legally enforced. The ASRM states that sperm donors should be over 21 years of age and egg donors should be between 21 and 34 years of age[1], thus the age for egg donation is capped where the sperm donation age is not. They also state that, due to the potential impact of hormonal injections on an individual’s health, egg donors should be limited to six lifetime donation cycles[2]. Egg donors can make thousands of dollars donating, but the process is much more invasive and requires 1-2 weeks of hormonal injections and surgery to retrieve between 20-40 follicles. Additionally, due to the biology of follicle maturation, realistically about one-third of retrieved follicles are actually fertilized and become embryos, sometimes fewer. A sperm donor, on the other hand, has no limit on the number of times to donate, no injections or surgery, and can donate millions of sperm cells in a single emission. This means that potentially millions of people could have had the same sperm donor even if that donor donated one time, while a given egg donor can only donate enough follicles over their lifetime for potentially up to 120 people at the maximum. Realistically, clinics are not providing the same donor for that many reproductive cycles in either case, but the inequality is notable that each sperm donor can provide significantly more genetic material over their lifetime than each egg donor.

There is a further inequality in consenting egg or sperm donors: because egg donation is an invasive surgery, it requires informed consent, while sperm donation requires simple consent[3]. Informed consent requires much more patient education about the risks of the procedure and alternatives, whereas simple consent requires the clinician to provide much less information. While many providers and sperm banks do use informed consent for sperm donors, this is not required by law in the way it is for an egg donor. Sociologist Katherine M. Johnson studied gender norms in gamete donation and found that egg donors were perceived as embedded in the family unit and emotionally connected to their eggs compared to sperm donors, who are perceived as independent[4]. This practice in the medical setting reinforces gendered stereotypes that women are maternal, nurturing, want children more, and are more emotionally connected to their offspring than men. Women who donate eggs may not feel emotionally connected to the cells they donated, and men who donate sperm may be nurturing and parental and feel emotionally connected to the cells they donated. By having a medical practice reinforce such gender norms, and with legal differences in consenting requirements, it gives medical, scientific, and legal credibility to such assumptions, despite that they are not always the case for women and are not always untrue for men. Informed consent is important for all types of donated gametes, so that an egg or a sperm donor both understands the procedure and what will follow (i.e., potential children born) after they themselves are directly involved. Overall, the egg donation process is much more medically invasive and intensive, has much more limited genetic material output, and is legally required to have a more extensive, time-consuming consent process.

Spousal involvement in gamete donation is not legally required and perpetuates gender norms

The ASRM Ethics Committee released a report in 2009 about the rights and obligations of gamete donors, in which they explicitly stated that both egg and sperm “donors should be advised to consider that their own children and ‘present or future spouse(s) or partner(s) may have an interest in the consequences of the donation’”[5]. This recommendation about partner involvement applies to both egg and sperm donors. The state laws about gamete donation differ for egg versus sperm donation in subtle ways, but the ways they differ in practice are striking. Egg donors’ partners/spouses do not appear in any of the 23 state statutes and 2 case law precedents about egg donation; sperm donors’ spouses are also not mentioned in statutes across 36 states and DC[6]. In statutes around either gamete donation, the only mention of a spouse is the recipient of the donated gamete in order to give consent to become the legal parent of the resulting child[7]. In these cases, the egg or sperm recipient’s spouse is specified as the “husband”, which fails to mention other parental figures, in cases where the recipient has a wife or non-binary spouse. However, despite no legal requirements or case law precedent about spousal involvement in gamete donation, many states and countries involve gamete donors’ spouses in the contractual agreements, and sometimes even screening.

Sociologist Katherine M. Johnson argues that gender norms play a substantial role in the gamete donation process and looked into laws surrounding partner involvement. Despite no legal precedent, Johnson found that in practice, partners are much more involved in egg donation than sperm donation. This reasoning in the medical system is not upheld by the legal requirements for egg donors, which do not address spousal involvement. Partner involvement in psychiatric evaluations and informed consent limits the donor’s voice and autonomy, and perpetuates gendered stereotypes. The ASRM recommends that egg donors’ intimate partners participate in psychological evaluations even for anonymous donations, which is not the case for sperm donors[8]. Although there are no legal requirements that an egg donor consults with their spouse, there are many egg donor agreements that require an egg donor’s “husband” to sign the consent form, which is a contractual agreement[9]. This is for the partner to verify the donor’s application and ensure that both parties understand and agree to the limitations of the agreement[10], including supporting that the egg donor cannot engage in sexual relations that could lead to pregnancy during the contractual period[11]. However, this level of involvement in verifying information and upholding the contract implies that the donor is not sufficiently reliable and that the partner is more believable and reliable, thus limiting the donor’s autonomy and voice. Importantly, since much of these contracts and agreements use heteronormative assumptions and language, this perpetuates gender norms that a man in a woman’s life is more reliable and trustworthy about the woman’s screening, is more intelligent in understanding the information presented for the informed consent, and is more able to control his sexual desires. Overall, this again perpetuates gendered stereotypes that go against a woman’s autonomy, intelligence, and ability to make decisions for herself.

There is also a legal argument for an egg donor’s “husband” to sign the informed consent, based on avoiding litigation, but this argument is not legally supported. This argument states that the donor’s “husband” signs the consent form to prevent litigation for parentage rights over a child that may be born using his wife’s eggs[12]. Such language in all of these agreements assumes that the donor’s “husband” has rights to a child born with his spouse’s donated eggs, despite no legal statute supporting this and despite even case law precedent (Planned Parenthood of Central Missouri v Danforth in 1976[13]) against spousal involvement in an individual’s reproductive decisions. The legal precedent from Planned Parenthood of Central Missouri v Danforth would support the intended parents of a child born with donated eggs. If someone were to attempt litigation for the parentage rights of a child born with their spouse’s eggs, the egg donor had decided to donate and sign away ownership of eggs and their spouse cannot claim parentage over children born with those eggs.

Suggested policy changes to spousal involvement and informed consent practices

These practices perpetuate gendered norms that do not treat women as fully independent individuals. They perpetuate societal norms that do not believe women or view them as reliable and require a man in a woman’s life to give credibility and consent to the procedure. Spousal involvement in the egg donation application and consent processes limits a person with ovaries’ autonomy and voice in the process, despite no legal statute requiring such practices in developing the contracts, and no equivalent inclusion of sperm donors’ spouses in sperm donation contracts. A policy should be developed to explicitly state that gamete donors’ spouses do not have parentage rights over children born with their spouse’s gametes to avoid litigation potential, and, from there, contracts and informed consent for a gamete donor should only require signatures from the donor themselves, in order to preserve their autonomy and voice. Gamete donors of all genders should have to provide informed consent, so that sperm and egg donors understand the procedures they will undergo and the potential risks and outcomes of the process. Additionally, in the case of anonymous donors, this informed consent should be required to include a clear explanation that with today’s genetic and genomic technologies, anonymity can be contractually maintained but not genetically so; if they or their relatives use direct-to-consumer genetic testing, results may show genetic relatives of a child who was born using donated gametes. If a gamete donor wants to involve their spouse in the process, it should be up to them as an individual to decide what they want to share and how involved they want their spouse to be.

[1] The Practice Committee of the American Society for Reproductive Medicine and the Practice Committee for Society for Assisted Reproductive Technology, Guidance regarding gamete and embryo donation, (2021), https://www.asrm.org/globalassets/asrm/asrm-content/news-and-publications/practice-guidelines/for-non-members/recs_for_gamete_and_embryo_donation.pdf.

[2] Id.

[3] Katherine M. Johnson, My gametes, my right?: The politics of involving donors’ partners in egg and sperm donation, 45 J. Law, Med. Ethics 621 (2017).

[4] Id.

[5] Ethics Committee of the American Society for Reproductive Medicine, Interests, obligations, and rights of the donor in gamete donation, (2009), https://dsr-static-files.s3.us-west-2.amazonaws.com/06634d4fa555d022.

[6] Id.

[7] Id.

[8] Johnson, supra note 3.

[9] Id.

[10] Id.

[11] Kristin Marsoli, The 7 Most Asked Questions About Becoming an Egg Donor, Circle Surrogacy Blog (2022), https://www.circlesurrogacy.com/blog/circle-surrogacy/the-7-most-asked-questions-about-becoming-an-egg-donor/.

[12] Johnson, supra note 3.

[13] Planned Parenthood of Central Missouri v Danforth, 428 U.S. 52 (1976).