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This ova donation agreement (hereinafter referred to as "Agreement") is made and entered into by and between _________ , (here in after referred to as "Donor"), and, Intended Mother ____ (hereinafter referred to as "Intended Mother"), and Intended Father ___ (hereinafter referred to as "Intended Father") (Intended Mother and Intended Father hereinafter collectively referred to as “Intended Parents”). (Donor and Intended Parents are hereinafter collectively referred to as the "Parties”).
This Agreement is made with the understanding of the following facts:
1. RECITALS AND WARRANTIES
A. The sole purpose of this Agreement is to enable Intended Parents to have a Child(ren) by means of in vitro fertilization using ova and/or genetic material from the ova donated by Donor and Intended Father's sperm or sperm donated to Intended Parents. As used in this Agreement, "ovum", "ova", "donated ova" or “genetic material from the ova”, shall include all human ova, including genetic material, retrieved from Donor simultaneously pursuant to a medical ova retrieval procedure (hereinafter referred to as "Retrieval Procedure"). As used in this Agreement, "child", "Child", "Children", or Child(ren) shall include any and all Child(ren) born from the donated ova and/or genetic material from the ova retrieved pursuant to this Agreement.
B. All of the Parties warrant that all representations, either oral or written, made to any professional, entity or Party are true, correct, and complete. Additionally, the Parties desire to maintain confidentiality between themselves, one to another, and between themselves and the public.
C. Donor is a single woman, is the age of twenty-one (21) years or over, and is desirous of entering into this Agreement. Donor, based on her information and belief, represents that she is capable of producing healthy, normal ova. Donor wishes to donate her unfertilized ova, including genetic material from the ova, to the Intended Parents for their use in the conception and parenting of a Child(ren). Donor does not desire or intends to have a parental relationship with any Child(ren) born of the donated ova or genetic material from the ova and agrees not to attempt to form a parent-child relationship with any Child(ren) that may be born pursuant to this Agreement now or in the future. Moreover, Donor relinquishes and disavows any and all rights, interest, responsibilities and claims, if any, with respect to the donated ova and/or genetic material from the ova and/or any and all Child(ren) born of the donated ova and /or genetic material from the ova. Further, Donor believes and intends that any and all Child(ren) born of the donated ova and/or genetic material from the ova are morally and legally that of the Intended Parents as if the Child(ren) was genetically of both Intended Parents.
D. Intended Parents are a married couple, are the age of twenty-one (21) years or over, and are desirous of entering into this Agreement. Intended Parents, based on their information and belief, represent that they have experienced difficulty conceiving a child without the assistance of medical technology. Intended Parents desire and intend to have the donated ova fertilized with Intended Father's sperm or sperm donated to Intended Parents, and the resulting embryos transferred to Intended Mother's uterus. Intended Parents propose and desire to gestate the resulting embryo(s) to term and accept all parental rights and responsibilities for the Child(ren) thus conceived and born. It is absolutely the Intended Parents' decision whether to gestate the embryo(s) to term. Further, Intended Parents warrant that they have discussed the implications of parenting a child conceived via ova donation and that they are comfortable and knowledgeable regarding the situation.
E. The Parties understand that the Intended Parents have suffered much pain and agony to bring a Child(ren) into their family and are now relying on Donor's assistance to help produce a Child(ren). It is also understood by the Parties that grave, severe and intense emotional stress, humiliation, and mental anguish may occur to either Party as a result of a material breach by the other Party, and that the breaching Party may be liable for intentional infliction of emotional distress.
F. It is understood by all Parties that ova donation, including genetic material from the ova,
and "in vitro" and/or "in utero" fertilization are procedures within a new, unsettled, and uncharted area of the law, and no warranties have been or can be made as to the ultimate result, cost, liability, or obligation of the Parties, as a result of the conduct contemplated by this Agreement and/or that may ensue from any judicial, legislative, or administrative process as a result of the conduct contemplated herein or with respect to any arbitration/litigation necessary to establish any right of any of the Parties per this Agreement, including parental rights and/or financial obligations regarding any donated ova, embryo, or Child(ren) born as a result of this Agreement.
G. WHILE THE PARTIES ARE ENTERING INTO THIS AGREEMENT WITH THE INTENTION OF BEING FULLY BOUND BY ITS TERMS, THEY HAVE BEEN INFORMED THAT THIS AGREEMENT IN WHOLE OR IN PART MAY BE DECLARED VOID AS AGAINST PUBLIC POLICY BY THE LEGISLATURE OR COURTS IN WHICH ANY PARTY RESIDES, OR HELD UNENFORCEABLE IN WHOLE OR IN PART BY SUCH COURTS. FURTHER, THE PARTIES HAVE BEEN INFORMED THAT THIS AGREEMENT MAY NOT BE ENFORCED IF SUCH ENFORCEMENT VIOLATES ANY
NON-WAIVABLE CIVIL OR CONSTITUTIONAL RIGHT OF ANY PARTY TO THIS AGREEMENT.
The Parties intend each part of this Agreement to be legally enforceable and dispositive of the intent of the Parties with respect to any Child(ren) conceived and born pursuant to this Agreement.
H. The Parties have been informed and advised of the California Supreme Court decision in Johnson v. Calvert and agree the decision applies to and governs the conduct contemplated herein to the extent the decision was based upon the intent of the Parties as to parentage. The Parties have been informed and advised of the California Fourth Appellate District Court's decision in IRMO Buzzanca, and agree the decision applies to and governs the conduct contemplated herein to the extent the decision was based upon determination of parentage.
I. IT IS EXPRESSLY UNDERSTOOD BY THE PARTIES THAT THIS AGREEMENT IN NO WAY CONSTITUTES PAYMENT FOR OR PURCHASE OF GENETIC MATERIAL OR A CHILD, OR RELINQUISHMENT OF A CHILD.
J. The Parties understand the parentage and/or parental rights and obligations regarding children born pursuant to this type of agreement remains unsettled in California law at this time. Notwithstanding passage of any legislation which may apply to the conduct of the Parties under this Agreement, each Party hereby agrees their intent, as set forth in this Agreement, shall govern any dispute, should such occur. The Parties expressly agree herein their intent is for Intended Mother to be the legal mother/parent of any Child(ren) born pursuant to this Agreement, and that Intended Mother shall be treated in all respects as the natural and legal mother/parent of any Child(ren) conceived and/or born. The Parties expressly agree herein their intent is for Intended Father to be the legal father/parent of any Child(ren) born pursuant to this Agreement, and that Intended Father shall be treated in all respects as the natural and legal father/parent of any Child(ren) conceived and/or born. The Parties further expressly intend the Donor is NOT the natural or legal mother/parent of the Child(ren) conceived and/or born pursuant to the terms of this Agreement. Donor does NOT and shall NOT have ANY legal rights and/or obligations to the Child(ren).
K. The Parties expressly understand and acknowledge that notwithstanding California Penal Code Sections 181 (prohibiting involuntary servitude) and 182 (prohibiting conspiracy to commit a crime), said California Penal Code sections have never been applied to Ova Donation.
NOW THEREFORE, in consideration of the mutual promises, terms, conditions and covenants set forth above and hereinafter, and with the intention of being legally bound thereby, the Parties agree as follows:
2. PSYCHOLOGICAL AND PHYSICAL EVALUATIONS
A. Donor agrees to, or has already undergone, a psychological and physical evaluation prior to the Retrieval Procedure. Donor agrees to undergo and/or has already undergone a comprehensive physical examination. Donor also agrees to provide Intended Parents with non-identifying comprehensive medical and psychological information about herself and any and all biological children. In addition, Donor shall execute any authorization necessary for the release of non-identifying medical and psychological information, thereby allowing any health care professional designated by Intended Parents to obtain and review her non-identifying medical and psychological records.
B. Donor hereby warrants that any and all representations made in her application to be an ova donor are true, correct, and complete. Further, Donor warrants that she has made all relevant disclosures regarding medical and family history in her application.
C. The Parties agree to submit for screening for sexually transmitted diseases (including HIV) in order to protect the health of the Intended Mother and Child(ren). Further, Donor and Intended Parents agree to undergo any medical testing that IVF Physician (hereinafter "IVF Physician", "Physician", or "Physicians") or a health care provider designated by Intended Parents deems necessary, while this Agreement is in effect, at the expense of Intended Parents. The Parties agree that all medical procedures and the Retrieval Procedure shall be conducted in accordance with standards and requirements of IVF Physician or a health care provider as designated by Intended Parents. Donor, if currently sexually active, warrants that she has a monogamous relationship with her current partner (not her husband) (hereinafter referred to as “Partner”) and further warrants that her Partner agrees to and shall submit for screening for seually transmitted diseases (including HIV) and agrees to undergo and medical testing that Physician deems necessary at Intended Parents’ expense. However, if Donor is not currently sexually active or if Donor wishes to commence sexual relations with a new partner (hereinafter referred to as "Donor's New Partner"), Donor agrees that Donor's New Partner will agree to submit for screening for sexually transmitted diseases (including HIV) and to undergo any medical testing that IVF physician, designated by Intended Parent, or a health care provider designated by Intended Parent, deems necessary, while this Agreement is in effect, at the expense of Donor in order to protect the health of the Intended Mother and Child(ren). Donor further understands that she may not commence sexual relations with Donor's New Partner until physician provides a medical clearance for Donor's New Partner. Any relations prior to medical clearance by physician will be deemed a material breach of this Agreement.
D. Donor acknowledges that she has the right, at Intended Parents' cost, to request a psychological evaluation of Intended Parents by a mental health care professional licensed to practice in the state and/or country of their residence, and by her signature on this Agreement hereby waives this right.
E. The Parties understand that by executing this Agreement, they are agreeing to waive their doctor-patient privilege, permitting review of medical information, and allowing written and verbal communication between the evaluating health care provider and any Party to this Agreement, as well as the Parties' attorneys and ________, Inc. The Parties agree to execute a separate authorization for release of such information, if so requested. With respect to Intended Parents, this paragraph shall be limited solely to medical information directly related to the Retrieval Procedure contemplated by this Agreement.
3. DONOR'S CONDUCT
A. Donor agrees not to ingest alcoholic beverages, use tobacco or nicotine products, or use any illegal drugs from the date of execution of this Agreement through completion of the Retrieval Procedure. In addition, Donor agrees not to use any prescription or non-prescription medication without the express written consent of the IVF Physician, from the date of execution of this Agreement (or sooner if advised by IVF Physician), through completion of the Retrieval Procedure. If any cycle is canceled, Donor may resume use of alcohol, prescription and/or non-prescription medication as advised by Physician, until two (2) weeks before the onset of medication, Lupron or similar cycle-related medication, other than birth control pills, for the next cycle through completion of the Retrieval Procedure for that cycle.
B. Donor agrees to adhere to all reasonable medical instructions given to her by any Physician performing services related to the Retrieval Procedure. Donor also agrees to be available for any and all routines and procedures required by any Physician performing services related to the Retrieval Procedure. Further, Donor understands that it is imperative she follows the IVF physician's schedule for taking medication exactly and not deviate from it unless instructed to do so by the IVF Physician.
C. The Donor agrees to abstain from any sexual activity, including intercourse, that would allow the transmission of sexually transmitted diseases, from the time she begins her medical evaluation and testing until after the Retrieval Procedure and upon Physician’s clearance for Donor resuming sexual activities. If any cycle is canceled, Donor and Donor's Partner, pursuant to Section 2C, may resume monogamous, protected sexual relations with each other, using condoms, as advised by Physician, until a minimum of two (2) weeks before the onset of medication Lupron, or similar cycle-related medication, other than birth control pills, through completion of the Retrieval Procedure and upon Physician’s clearance for Donor resuming sexual activities, for the next cycle through completion of the Retrieval Procedure for that cycle. If any cycle is canceled and Donor has a new partner, Donor and Donor’s New Partner, upon medical clearance from Physician pursuant to Section 2C, may have monogamous, protected sexual relations with each other, using condoms, and shall abstain from such sexual activity as advised by Physician from before the onset of medication Lupron, or similar medication, for the next cycle through completion of the Retrieval Procedure for that cycle. Donor will be in breach of this Agreement if she becomes pregnant (resulting from consensual sexual activities) during the term of this Agreement.
4. PROCEDURE
A. The Parties agree that the Retrieval Procedure shall occur one time within six months of the signing of this Agreement by all Parties. Donor agrees to relinquish custody of all retrieved ova to Intended Parents immediately upon retrieval during the Retrieval Procedure.
B. Donor understands that any original date given to her regarding the Retrieval Procedure is only a guideline provided to the Parties as a courtesy to allow for personal scheduling, in order to minimize the inconvenience of the Parties. Donor agrees to be available to undergo the Retrieval Procedure on the date on which it actually falls, regardless of whether it is different from the tentative date(s) originally quoted to her.
C. Intended Parents agree that the possibility exists that sufficient ova, including genetic material from the ova, may not be retrieved or fertilized, and that no viable embryos may result from the Retrieval Procedure.
D. All Parties agree to sign reasonable consent forms provided by IVF Physicians.
5. MATERNITY AND PATERNITY
A. Donor agrees that Intended Mother shall enter Intended Mother's name as the Mother on the birth certificate of any Child(ren) born from the donated ova and/or genetic material from the ova. Donor agrees that Intended Father shall enter Intended Father's name as the Father on the birth certificate of any Child(ren) born from the donated ova and/or genetic material from the ova. The Intended Parents intend to use Intended Father's sperm, but may use sperm donated to Intended Parents, to fertilize the donated ova and/or genetic material from the ova.
B. Donor agrees that it is in the best interests of the Child(ren) that she not attempt to assert any maternity to the Child(ren) by any means, including a maternity action or otherwise, or attempt to form a parent-child relationship with the Child(ren).
C. Donor and Intended Parents understand that Intended Parents shall be conclusively presumed to be the legal parents of any Child(ren) conceived pursuant to this Agreement. Donor shall not have any parental rights whatsoever. (See Johnson v. Calvert, ftn.10). (See also IRMO Buzzanca). Intended Parents shall take parental responsibility and custody of any
Child(ren) conceived pursuant to this Agreement, immediately after birth, regardless of whether the Child(ren) suffer from any physical or mental disease or defect.
D. All ova, genetic material from the ova, and subsequent embryos produced by the Donor pursuant to this Agreement shall be deemed the property of the Intended Parents and as such, the Intended Parents' shall have the sole right to determine the disposition of said ova, genetic material from the ova, and embryos.
6. TERMINATION OF CUSTODY AND PARENTAL RIGHTS (IF ANY)
A. Donor agrees that it is in the best interest of the Child(ren) that Intended Parents are the Child(ren)'s parents. Therefore, Donor agrees that custody and control of any and all retrieved ova/ovum and/or genetic material from the ova shall immediately vest with Intended Parents at the time the Retrieval Procedure is performed, and as each ova is retrieved from Donor's body and placed in containers provided by the Physician. Such custody and control entitles Intended Parents to make all decisions regarding disposition of embryos created from donated ova and/or genetic material from the ova, including but not limited to disposition, ova, genetic material from ova, embryos, cryopreservation, transfer to Intended Mother's body, donation of ova, genetic material from ova, or embryo(s), destruction of ova, genetic material from ova or embryos, or abortion of fetus(es).
B. Donor has not and shall not execute any conflicting documents pertaining to this Retrieval Procedure only, including, but not limited to, Physician, fertility center, or hospital consent forms, wherein custody of ova are given to Physician, donor program, fertility center, or hospital, or another party other than Intended Parents.
C. The Parties further understand and agree that Intended Parents shall be conclusively presumed to be the legal parents of any Child(ren) conceived pursuant to this Agreement, and Donor surrenders any and all rights, if any, to any Child(ren) born from donated ova, including but not limited to parental rights, custodial rights, and the right to name the Child(ren). (See Johnson v. Calvert, n10). (See also IRMO Buzzanca). Intended Parents shall take parental responsibility and custody of any Child(ren) conceived pursuant to this Agreement immediately after birth, and Intended Parents' names will be placed on the birth certificate of any Child(ren) born from the donated ova and/or genetic material from the ova.
D. Donor agrees that she will not attempt to assert her maternity to the Child(ren) by any means, including a maternity action or otherwise, or attempt to form a parent-child relationship with the Child(ren). In addition, Donor will not seek to view or meet with the Intended Parents, the Child(ren), or their family, unless this provision is waived in writing by Intended Parents.
E. Donor agrees that the conduct contemplated under this Agreement is identical and/or the same as that involved in the donation of sperm, as specified under California Family Code Section 7613, notwithstanding the fact that the medical procedure necessary to obtain an ovum, surgical removal of an ovum from Donor, differs from that for obtaining sperm. Accordingly, Donor agrees that her rights, responsibilities, and obligations shall be the same as a sperm donor's as defined under California Family Code Sections 7613(a) and (b). Donor shall have NO parental rights toward any Child(ren) conceived and/or born pursuant to this Agreement and Intended Mother shall be treated in law as the legal and natural mother/parent of any Child(ren) conceived as a result of this Agreement, and Intended Father shall be treated in law as the legal and natural father/parent of any Child(ren) conceived as a result of this Agreement.
7. DEATH OF INTENDED PARENTS
A. If either or both Intended Parents should die after execution of this Agreement and prior to Donor commencing Lupron, or other similar medication as prescribed by Physician, then this Agreement shall terminate. If either or both Intended Parents should die after execution of this Agreement and after Donor has commenced Lupron, or other similar medication as prescribed by Physician, but prior to the Retrieval Procedure, then this Agreement shall terminate. Donor shall receive $500.00 as a cancellation fee in the event of termination of this Agreement pursuant to this paragraph. Termination pursuant to this Paragraph shall not constitute a breach.
B. If both Intended Parents should die after execution of this Agreement and Retrieval Procedure but prior to fertilization of ova, then this Agreement shall terminate and custody shall revert back to Donor.
C. If both Intended Parents should die after execution of this Agreement, the Retrieval Procedure, and fertilization of ova, any remaining cryopreserved embryos shall be destroyed.
8. CONSIDERATION
A. The Parties agree that the consideration paid pursuant to this Agreement constitutes reasonable monetary compensation for all foreseen and unforeseen losses, costs, and expenses incurred, as well as inconveniences, discomforts, and time experienced and spent by Donor in carrying out her obligations as set forth in this Agreement. Such consideration includes, but is not limited to lost wages, childcare, mileage, parking, inconvenience, pain and suffering, and for Donor's assumption of all medical and psychological risks related to this Agreement. Donor is not selling her genetic material, nor is she being paid to relinquish her parental rights to any Child(ren) born from her genetic material.
B. In consideration therefore, Intended Parents agree to pay for and/or to Donor and/or to indemnify her for all of the following items, which shall be paid prior to Retrieval Procedure:
i. Initial medical and psychological testing to determine Donor’s suitability as an ova donor and Partner’s testing, if applicable, if requested by Intended Parents or Physician;
ii. The Retrieval Procedure including, but not limited to, the costs of Physician, the medical facility, anesthesiologist and medication associated therewith;
iii. Donor will receive a total of $________ for the completed Retrieval Procedure payable within 7 to 10 days of Retrieval Procedure regardless of the number of ova that are retrieved. This amount shall be paid into a trust fund, established with _______, Inc., prior to the Donor beginning any medication required by Physician.
a. If, a cycle is canceled after administration of Lupron, or similar medication as prescribed by Physician, due to “poor response” by the Donor, (poor medical response as determined by Physician, and due to no fault of Donor, Donor shall receive $500.00 as a cancellation fee.
iv. Donor shall receive no more than $250.00 in attorney's fees for independent legal advice regarding the meaning and consequence of this Agreement.
v. Intended Parents shall not pay for Donor's legal advice regarding breach or enforcement of this Agreement.
vi. Intended Parents will purchase a temporary medical insurance policy through _____ having a ______ limit of to cover any complications directly attributable to the Retrieval Procedure. Intended Parents will pay for the temporary policy.
vii. Donor's remaining insurance deductible and/or co-payment as a direct result of the procedures contemplated by this Agreement up to one (1) month from the date of the Retrieval Procedure.
viii. All medical complications directly related to the Retrieval Procedure not covered by the temporary insurance policy, so long as the claim or expense is submitted to the insurance company pursuant to the insurance company’s requirements for timely submission or within one(1) month from the date of the Retrieval Procedure, whichever is shorter.
ix. Donor shall receive a flat fee in total of $250.00 for transportation costs and hotel accommodations for appointments with Physician, taking blood tests and/or undergoing the Retrieval Procedure.
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Intended parents' financial obligations for the Donor are limited to the above reimbursement only.
C. Donor agrees to reimburse Intended Parents for all payments made directly to her by insurance companies, if any, for medical expenses paid by Intended Parents under the terms of this Agreement.
D. The consideration is not conditioned upon the number or condition of ova retrieved or successful fertilization of ova. Intended Parents assume the risk of receiving unsatisfactory ova and/or genetic material from the ova.
IT IS EXPRESSLY UNDERSTOOD THAT THIS AGREEMENT IN GENERAL, AND THE CONSIDERATION SECTION IN PARTICULAR, IN NO WAY CONSTITUTES PAYMENT FOR GENETIC MATERIAL OR A CHILD, OR RELINQUISHMENT OF A CHILD.
9. ASSUMPTION OF RISKS
A. Donor warrants that she has had the medical and psychological risks explained to her by a medical professional. This includes, but is not limited to, the process of enhancement of ovulation, the actual Retrieval Procedure. Donor understands and agrees to assume all of these risks relating to Donor.
B. Donor warrants that she is aware of risks involved in traveling for activities contemplated by this Agreement, including, but not limited to, testing, screening, and the Retrieval Procedure. Such risks may involve intentional criminal or negligent actions by third parties or accidents, which could cause or lead to injury and/or death. Donor understand and agrees to assume all of these risks relating to Donor.
C. Intended Parents have had the medical and psychological risks explained to them by a medical professional. This includes, but is not limited to, the process of enhancement of ovulation and the actual Retrieval Procedure. Intended Parents understand and agree to assume all of these risks relating to Intended Parents.
INFORMED CONSENT, ADVICE, OR INFORMATION FOR ALL MEDICAL PROCEDURES IS THE INDIVIDUAL RESPONSIBILITY OF THE PARTY UNDERGOING SUCH PROCEDURE.
D. Intended Parents understand and are aware of the risk that pregnancy may result in genetic or congenital abnormalities including birth defects or mental retardation. Intended Parents are also aware of and understand that gender selection is not 100% effective. Nevertheless, Intended Parents agree to accept full legal and parental responsibility for any Child(ren) born from donated ova who possesses any such abnormalities and/or is not the gender of choice.
E. The Parties understand that informed consent, advice or information for all medical procedures, including but not limited to the Retrieval Procedure, is the individual responsibility of each Party. In addition, the Parties understand that the attorneys, psychotherapists, or any agent or employee of said entities are not responsible for any medical advice and/or information which may, should, or has been given to the Parties.
It is the responsibility of the Parties to this Agreement to consult with a geneticist as to the risk of any such abnormalities and/or defects.
10. HOLD HARMLESS
A. Donor warrants that she has consulted with a medical professional who has explained the medical risks to her and is aware of all risks, including death, which may result from the acts contemplated by this Agreement including, but not limited to, risks involved in medical examinations, Retrieval Procedure, and complications.
Donor hereby assumes all of the above stated risks, releases and holds Intended Parents' harmless from any legal liability arising from these risks.
B. Donor warrants that she has consulted with a psychologist who has explained the psychological risks to her and is aware of all risks associated with ova donation and the Retrieval Procedure.
Donor hereby assumes all of the above stated risks, releases and holds Intended Parents' harmless from any legal liability arising from these risks.
C. Donor warrants that she is aware of risks involved in traveling for activities contemplated by this Agreement, including, but not limited to, testing, screening, and the Retrieval Procedure. Such risks may involve intentional criminal or negligent actions by third parties or accidents, which could cause or lead to injury and/or death.
Donor hereby assumes all of the above stated risks, releases and holds Intended Parents' harmless from any legal liability arising from these risks.
11. HEALTH INSURANCE
A. Intended Parents agree to purchase a temporary policy, purchased through _______, to cover any complications directly attributable to the Retrieval Procedure. Intended Parents will pay for the temporary policy for up to one (1) month after the Retrieval Procedure. The insurance shall have a maximum $____ deductible or co-payment.
B. Donor shall use her best efforts to maintain the medical insurance plan during the entire term of this Agreement. Coverage under this insurance plan shall be obtained prior to the Retrieval Procedure and shall continue in force until one (1) month after the completed Retrieval Procedure, should medical complications develop as a result of the Retrieval Procedure. The coverage shall commence from the date of Donor taking Lupron, or similar medication as prescribed by Physician.
C. Donor shall advise Intended Parents of notices from the insurance company, including but not limited to cancellation, past due payments, change in coverage (amendments).
The Parties shall make their own investigation of the existence and extent of insurance coverage for the conduct contemplated by this Agreement.
12. NO WARRANTIES
A. The Parties expressly understand and agree that neither the health care providers whose services are contemplated under this Agreement, the attorneys, and/or the agents or employees of such entities guarantee or warrant that (1) Donor will produce healthy, viable ovum, and (2) the Child(ren), if conceived, will be physically and mentally healthy and free of birth or congenital defects.
13. BREACH
A. In the event of a material breach of the provisions of this Agreement without legal excuse, in addition to all legal and equitable remedies available to the non-breaching Party, the non-breaching Party may cancel this Agreement without further liability.
B. If a Party believes that another has breached the terms of this Agreement, they shall notify the other Party in writing, and the breaching Party shall be given an opportunity to cure within five (5) days of the notice. If a material breach is subject to cure and the breach is cured, the continued performance by the aggrieved Party shall constitute a waiver. If the breach is not cured, the continued performance of the aggrieved Party shall not constitute a waiver.
C. Donor shall be deemed to have breached this Agreement if, among other things, Donor chooses to voluntarily withdraw from this program without a medical reason, fails to follow Physician orders, fails to comply with the terms of this Agreement, becomes pregnant through consensual intercourse during the stimulation phase, or fails to be available for treatments or procedures as scheduled, including but not limited to the Retrieval Procedure. In the event that Donor breaches this Agreement, in addition to all other remedies and damages, she shall reimburse any and all expenses incurred by the Intended Parents, which include, but may not be limited to, donor agency fees, medical costs, the cost of the medication, transportation to appointments with Physician, as well as legal fees, and any other expenses necessitated by Donor's initial agreement to this Agreement, plus interest at the legal rate from the date the monies were placed in trust until they are repaid.
D. In no event shall any Party be deemed to have materially breached this Agreement where the inability to perform timely is due to a cause which is beyond the control of the Party (e.g. hyperstimulation, under-stimulation, a prohibitive medical problem of Intended Mother or Donor, a serious injury to any Party, a natural disaster or any other act of God). Failure to be available for the Retrieval Procedure as a result of Donor's work or school schedule or another reason or circumstance that could have been prevented by better scheduling shall not be considered "beyond the control" of Donor.
E. The non-performing Party(s) agree to perform as soon as is possible given the specific circumstances. However, should the Intended Parents determine that the delay has irreparably jeopardized the purpose of this Agreement, the Intended Parents shall notify the Donor of this determination, as well as the cancellation of this Agreement. Termination of this Agreement pursuant to this Paragraph shall supersede the requirements pertaining to "cure", as set forth in Paragraph 13B.
F. If the Intended Parents terminate this Agreement, due to a material breach by Donor, all funds remaining in excess of those sums necessary for payment of expenses already incurred shall be returned to the Intended Parents forthwith upon their demand.
G. The Parties agree that certain terms of this Agreement, including but not limited to the terms relating to custody and parental rights, and the rights of the privacy of the Parties, will survive any termination of this Agreement by breach or otherwise. In addition, those terms relating to Intended Parents' parental rights and their right to sole and exclusive custody of any Child(ren) born as a result of the Retrieval Procedures contemplated by this Agreement may not be diminished, disturbed, or otherwise affected by any actual or alleged breach.
14. CONFIDENTIALITY/PRIVACY RIGHTS
A. Confidentiality of the Parties' identity is highly valued in this situation, and the Parties acknowledge and agree that it is in the best interest of the Child(ren) that details surrounding this Agreement, and information on the Parties obtained as a result thereof, shall be held in the utmost confidence and will remain private. Further, the Parties agree that use of titles and registrant numbers assigned to the Parties by _____, Inc. shall be deemed legally binding signatures.
B. The Parties shall maintain the confidentiality of this Agreement between themselves. The Parties shall not provide information to the public, news media, or any other person and/or entity, except as otherwise provided herein, without the express written consent of all the Parties to this Agreement. The Parties understand that the confidentiality provided for herein in these paragraphs does not contemplate speaking with friends and relatives, the Parties' respective attorneys, Physicians or other professionals, and/or any other persons associated with any aspect of this Agreement about their own involvement in the gestational arrangement. Such conversations are permitted and do not constitute a breach of the confidentiality, provided that the identity of the other Party(s) is not disclosed.
C. In the event any claim or litigation arises out of the performance of this Agreement, the Parties agree that they and their heirs, assigns and representatives, including their legal counsel, will take all reasonable steps to maintain such confidentiality and the rights of privacy of the Parties, including but not limited to: (a) requesting court records be sealed; (b) requesting the court impose gag orders; and (c) requesting the court take all necessary steps to protect the Parties' identities from disclosure to the public and/or news media.
15. FUTURE CONTACT
A. The Parties agree that there will be no future contact beyond the term of this Agreement with the exceptions listed herein.
16. CHANGES IN CIRCUMSTANCES/NOTICE
A. During the term of this Agreement, the Parties agree to immediately inform each other in writing of any material change in their circumstances which may reasonably affect this Agreement. These changes include, but are not limited to, change of address, illness or death of a Party, loss of employment, change in insurance coverage, pregnancy, and/or exposure to communicable illness.
B. Due to the genetic connection of the Child(ren) to the Parties, it may in the future become necessary to obtain medical information from a Party to this Agreement. Therefore, Donor agrees to inform _______, Inc. or its designated agents or employees of any change of address for Donor’s lifetime. If medical information must be obtained from Donor in the future or at anytime, Donor agrees to furnish such information, and to sign a Release of non-identifying Medical Records, if required.
C. The Parties acknowledge that the sharing of genetic material when combines with anonymity creates the potential that children who are genetically related may meet in the future and inadvertently develop a relationship.. Therefore, in order to avoid future inadvertent and inappropriate relationships between genetically-related individuals, the Parties agree to inform and/or release to the other Party (care of ____, Inc.) the gender and birth date of any and all Child(ren) born of the donated ova, as well as any children born to the Donor.
17. TERM
A. The term of this Agreement shall begin with the latter execution date and end with the completion of the Retrieval Procedure. However, the term set forth herein is not intended to abridge the Parties' rights and/or obligations hereunder which may extend beyond this period, including but not limited to, parental rights and responsibilities, confidentiality, financial responsibilities, and future contact.
18. TERMINATION OF AGREEMENT/CANCELLATION OF CYCLE
A. At any time prior to the active preparation of Retrieval Procedure (e.g. the beginning of Donor's ingestion of medication for said Retrieval Procedure) either Party may terminate this Agreement by two (2) days written notice to the other Party. If Intended Parents terminate this Agreement pursuant to this provision, Intended Parents shall have no further obligation or liability.
B. If the IVF Physician advises the Parties to cancel the cycle after initiation of medication, and the cycle is canceled, pursuant to Section 8Biii(a), the Donor will be entitled to the cancellation fee in Section 8Biii(a), and Donor shall be obligated to reschedule a second cycle. However if Physician advises cancellation of the cycle, due to no fault of Donor, and the Donor is not a good candidate for a rescheduled cycle, then this Agreement shall terminate without further disbursement to Donor after payment of the cancellation fee in Section 8Biii(a). Physician-recommended cancellation shall not make anyone in breach of Agreement, unless the reason for cancellation is based on a material violation of a Party of this Agreement. If the cycle is cancelled through no fault of Donor, then Donor will not be required to return any compensation already received.
C. If the IVF Physician advises the Parties to cancel the cycle after initiation of medication for the second cycle, and the cycle is cancelled, the Parties shall have the option of rescheduling a third cycle or terminating this Agreement without further disbursement to Donor after payment of the cancellation fee, if applicable, pursuant to Section 8Biii(a).
19. GOOD FAITH PERFORMANCE
A. The Parties shall execute all such further and additional documents as shall be reasonably, (i) convenient, (ii) necessary, or (iii) appropriate to carry out the provisions of this Agreement in good faith.
20. DISPUTE RESOLUTION
A. MEDIATION: The Parties agree to mediate any dispute or claim arising between them from this Agreement or any resulting transaction PRIOR to bringing any court action. Mediation is a process by which parties attempt to resolve a dispute or claim by submitting it to an impartial neutral mediator, who is trained and authorized to facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the Parties. Mediation fees, if any, shall be divided equally among the Parties.
B. IF ANY PARTY COMMENCES AN ARBITRATION OR COURT ACTION BASED ON A DISPUTE OR CLAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THE MATTER THROUGH MEDIATION, THEN IN ADDITION TO ANY OTHER REMEDIES AVAILABLE AT LAW OR AT EQUITY, IN THE DISCRETION OF THE ARBITRATOR(S) OR JUDGE, THAT PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES, EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARTY IN ANY SUCH ARBITRATION OR COURT ACTION.
C. EXCLUSIONS FROM MEDIATION: Any matter which is within the jurisdiction of a probate or small claims court, is excluded from the above mediation paragraphs. The filing of a court action to enable an injunction, or other provisional remedy, shall not constitute a violation of this section.
D. In the event litigation is required to interpret or enforce the terms of this Agreement in a court of competent jurisdiction, the prevailing Party shall be entitled to reasonable attorney's fees, court costs, and to any other relief to which the court determines the said Party is entitled; provided that the prevailing Party attempted to comply with the Mediation requirements of this Section before commencing litigation.
21. GOVERNING LAW
A. The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement shall be construed pursuant to, and in accordance with, the laws of the state of California. Any dispute resolution or litigation arising from this Agreement shall be brought in the state and in the county in which the Intended Parents reside, unless the Intended Parents choose otherwise. If Intended Parents move to a jurisdiction outside the continental United States, any dispute resolution or litigation arising from this Agreement shall be brought in the state in which Donor resides, unless the Parties agree otherwise.
22. INDEPENDENT LEGAL COUNSEL
A. The Parties acknowledge that they have had the opportunity to consult with and/or have been represented by separate legal counsel in the negotiations of this Agreement, and that their counsel was of their own choosing. The Parties further acknowledge that they have read this Agreement, that they have been advised and that they understand its meaning, as well as its legal and other consequences. The Parties are signing this Agreement freely and voluntarily. In addition, the Parties acknowledge that they have participated or had an opportunity to participate in the drafting of this Agreement. As such, in the event of an ambiguity, it shall not be construed against any Party.
B. Attorney representation of clients is deemed completed at the time all Parties sign this Agreement.
23. TAX IMPLICATIONS
A. This Agreement does not instruct the Parties, nor have the attorneys advised the Parties, on the issue of taxation of any payment made pursuant to this Agreement, and this Agreement is not dependent on any particular tax characterization of any payment made hereunder. All Parties agree to consult with a tax specialist in order to determine their own responsibilities and duties. In addition, it is hereby understood that Donor is not considered to be an employee of any of the Parties.
24. GENERAL PROVISIONS
A. Entire Agreement This written Agreement is the entire agreement among the Parties. No other promises, representations, inducements, understandings, contracts, agreements, or commitments, written or oral, exist among the Parties. In addition, the Parties declare that the terms of this Agreement are contractual and not mere recitals. This Agreement applies to, inures to the benefit of, and binds all Parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns.
B. Amendment This Agreement shall only be amended by a written agreement signed by the Party(ies) to be bound.
C. Severability If any part of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining sections of this Agreement shall remain in full force and effect.
D. Counterparts It is understood and agreed that this Agreement may be signed in several counterparts, each of which shall be deemed to be an original, although each may be differently formatted, with different pagination, due to email or facsimile formatting, but all of which taken together shall constitute one and the same document.
E. Original and Copies Upon execution of this Agreement, the original counterparts for all Parties shall be maintained by the Intended Parents, with copies given to Donor.
F. Time is of the Essence Time is of the essence of this Agreement.
G. Effect of Captions The captions are for the convenience of the Parties only and are not meant to limit the context or content of the paragraphs.
25. HIGH RISK ACTIVITIES AND SEXUAL RELATIONS
A. The Parties assert that they have not engaged in high risk sexual intercourse or other high risk activities, including intravenous drug use, promiscuous homosexual activity, or prostitution since they have been tested for sexually transmitted diseases, including HIV.
B. Intended Parents agree to remain monogamous with the spouse/partner named herein from the date of testing through the period of embryo transfer to Intended Mothers’ uterus and/or Surrogate’s uterus. Donor agrees to refrain from any conduct where the transmittal of a sexually transmitted disease could occur except for as listed in Sections 2C and 3C.
26. INTEGRATION AND UNDERSTANDING
A. The Parties declare, warrant, and represent this Agreement is the entire Agreement and understanding between the Parties; that no inducements, promises, understandings, or agreements not contained in this agreement have been made to them; and that all the terms and conditions contained herein are contractual. Prior warranties, representations, agreements, understandings, contracts, and other commitments, whether written or oral, are either waived by the Parties herein or are merged into this Agreement.
B. This Agreement applies to, inures to the benefit of, and binds all Parties hereto, including their heirs, administrators, executors and successors.
C. The Parties declare, warrant, and represent that they have carefully read, reviewed, and understand all terms and conditions of this Agreement and that they agree to be bound by all the terms and conditions herein, as evidenced by their signature hereto, and have executed this Agreement freely and without undue influence or duress.
D. It is the express intent of the Parties and a material term of this Agreement that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the state of California, United States of America.
E. All Parties declare under penalty of perjury under the laws of the state of California and the state of their residence that the foregoing, and any other information personally known to the Parties, and provided to each other is true, correct, and complete.
F. We each separately declare under penalty of perjury under the laws of the state of California that the foregoing, and any other information personally known to the Parties, and provided to each other is true, correct, and complete.
“Donor” “Intended Mother”
________________________________ ___________________________________
Date:____________________________ Date:_______________________________
“Intended Father”
___________________________________
Date:_______________________________