Some fertility clinics and agencies take a harsh approach when an egg donor has second thoughts.
Sometimes an egg donor changes her mind. Maybe something about her work makes it more challenging. Maybe a family member falls ill. Or maybe she gets a funny feeling about the whole thing.
Can she back out?
In my latest piece, published yesterday in Undark magazine and reprinted below, four young women, working with four separate fertility organizations, describe how they were pressured to reconsider or pay up. None of them had begun injectable medications or even signed a donor agreement.
Had they signed an agreement, they might have agreed in writing to a clause like this:
If the Egg Donor terminates this Agreement without cause after the start of injectable medication but before the egg retrieval procedure, she will be responsible for reimbursing the Intended Parent(s) for the following, plus interest:
(1) payments received by Egg Donor
(2) cost of medication for Egg Donor
(3) travel expenses of Egg Donor and companion, if any
(4) screening cost of Egg Donor and
(5) legal fees
That could add up to many thousands of dollars.
(If the intended parents backed out, by the way, they would only owe the donor $500, plus out-of-pocket expenses.)
Ubaka Ogbogu, in the Faculty of Law at the University of Alberta in Edmonton, believes clauses like these bring an element of duress to an egg donation arrangement: they might cause a woman to continue with a donation when it is not in her interest to do so. I worry that he is right.
For a Change of Heart, Would-Be Egg Donors Face Threats and Bills
In the summer of 2017, Julie Johnson saw a Facebook ad about egg donation. Somebody out there — an older mother, maybe, or a gay couple — needed eggs to have a child, and hers could be removed and given to them. In return, she could make a few thousand dollars. After giving it some thought, Johnson decided egg donation was something she might like to try. She filled out online forms about her family’s health history and about herself. Not long after, someone from a network of clinics called the Fertility Institutes got in touch about an appointment.
The Fertility Institutes was founded in Los Angeles, but it has offices and affiliates across the country and around the world. During Johnson’s first meeting with the group, at an office in Draper, Utah, near her home, she went through a basic health screening and learned more about the process.
Egg donation isn’t easy. Typically, it requires a woman to synchronize her ovulation cycle with that of the recipient woman, using birth control pills. Then the donor injects herself with hormones for a few weeks: One halts the natural reproductive cycle and helps prevent her from ovulating at the wrong time. Another ramps up egg production. Usually, a woman’s ovaries only release one egg a month, but with medication it could jump to 15 or more. If all goes well, a final drug triggers ovulation, and a clinician, guided by images from an ultrasound, harvests the eggs using a thin needle that goes up through the vagina and into the ovaries. For a fee that can range from about $3,000 to $10,000 — and on occasion much higher — the donor agrees to hand over these eggs to a client who wants to have a baby.
Sometimes, however, egg donors change their minds, and evidence suggests that in some instances, clinics and agencies brokering the egg exchange appear unwilling to take that decision in stride. Indeed, in numerous cases investigated by Undark and involving a variety of fertility organizations, donors say that even though they had not signed contracts, nor even started injecting necessary medications related to egg donation, they have been threatened — sometimes with legal action — when they decided not to continue. Emails, text messages, bills, and other documents chronicle threats and harassment aimed at getting the women to change their minds — or pay money.
Often, there is little in the way of protection for egg donors who find themselves in such situations, says Naomi Cahn, a law professor at George Washington University Law School in Washington, D.C. In the United States, Cahn says, eggs are essentially commodities that are bought and sold in a marketplace. Apart from a few state laws requiring some level of informed consent, there is very little oversight of that market.
Johnson’s story of harassment follows a common plot line. Not long after she was accepted into the Fertility Institutes’ program, a couple chose her as a donor. The Institutes asked her to undergo some more testing, at another clinic an hour away from her work, but she arrived too late for a blood test she needed. When she called the L.A.-based coordinator, Ana, to ask what to do, she recalls being scolded for having been late. “I was kind of really taken aback with how mad she was at me,” says Johnson. (The Fertility Institutes did not respond to requests for comment.) Johnson says she managed to have the blood taken at a nearby clinic the next day, and apologized to Ana that night in an email.
But by this time Johnson was having second thoughts. She wondered why the Fertility Institutes had insisted she go to a faraway clinic. She also worried what it signaled that the coordinator had been so angry. Johnson was scheduled to start the injectable medications later that week. But would her well-being be fully taken into account? “It was just such a sick feeling in my stomach, where I’m donating a part of my body for this, and I’m being treated like I’m trash,” she says. The next morning, she made up a story about something urgent having come up, and told Ana she was no longer available to donate.
Ana asked if there was anything the clinic could do. Johnson said no. Ana replied that she had passed the email on to the director. Then she added that Johnson would be on the hook for any costs incurred to that point.
Johnson hadn’t signed a donor agreement. Nor, she says, had she received any money. She says she hadn’t even been told what she would ultimately be paid for the egg donation. Johnson emailed back asking what made them think she’d agreed to their policy.
The clinic responded with a bill — for $3,399.00. In a separate email a few days later, they wrote, “The parents, in good faith, paid for all costs of getting you screened and prepared. Without notice or cause, you breached your agreement with them and they are now requesting that the fees they paid be returned to them.” The clinic told Johnson that they “will continue to recover fees due,” that “all remedies available will be employed to recover these fees,” and that she should probably get herself a lawyer.
“Obviously, I was terrified,” says Johnson. “How am I supposed to pay $3,500?”
The clinic’s email also included an attached donor agreement, purportedly signed and initialed by Johnson. But Johnson says the signatures and initials aren’t hers. She says she did sign an earlier financial arbitration agreement with the Fertility Institutes, but on the egg donation contract, there hadn’t even been an attempt to mimic her actual signature, she says, or to write it in a consistent style throughout the multi-page document. The date was impossible too — she had not met with or communicated with the clinic at all that day, she says.
Johnson got in touch with a lawyer, who advised her to take a hard line.
“I apologize for my delayed response,” Johnson said in an email to the clinic about a month later. “I was seeking legal advice on the forged documents you sent over.” She pointed out that, in addition to not having a lawful signature, the document said that a donor would only be liable if she’d already started taking the injectable medications; Johnson had opted out before that. She had not even been given the tutorial about how to do the injections.
“As I see it,” she concluded, “you have two options. 1) You give me, in writing, a statement stating that I owe you nothing or 2) I will let my lawyers handle it from here and I will sue you for forgery.”
Johnson never heard from the clinic again.
The details of donating eggs are complex. Although the money is appealing, the demands are high. As Johnson’s case shows, sometimes it doesn’t take much to change a donor’s mind. But fertility clinics and agencies make their money from the paying client, so when the donor drops out, the organizations have a lot to lose.
Johnson’s case was resolved quickly. But another woman, Rachael Woodburn (then Schofield), says she was pursued for more than a year — over the cost of a flight she didn’t even take.
Woodburn was a nursing student in her early 20s when she decided to become an egg donor. She had just been matched with a family when her mother was suddenly hospitalized with pneumonia. Woodburn had been scheduled to fly out a week or so later from Virginia, where she lived at the time, to the intended parents’ clinic in California, to undergo a full donor screening. But as soon as Woodburn learned about her mother, she canceled, and said she had to put things on hold until after her mother’s health stabilized.
Woodburn was working with an agency called A Jewish Blessing. Such agencies typically act as intermediaries between donors and recipients and sometimes between donors and clinics. Judy Weiss, the founder of the agency, emailed Woodburn that she understood if she was just scared and making up a story. In an interview, Weiss said such situations sometimes happen.
But the suggestion that she was lying was insulting to Woodburn. “I was very offended,” she says. Woodburn told the agency she was no longer interested. “I didn’t appreciate that sentiment,” she says.
According to Weiss, the agency asked Woodburn to return a $300 advance for spending money and for a car rental; Woodburn returned it. According to Woodburn, the clinic also asked her to pay back the cost of the flight — the one she had never taken. But Weiss has a different recollection, claiming Woodburn offered to repay that, in monthly installments: “We said, ‘That’s very lovely of you and if you’d like to do that, you can send us the money.’”
Woodburn never paid anything toward the flight. She had signed nothing, she says, and had no real medical screening, received no money aside from the advance, and taken no flight. She thought the agency had dropped the matter, but a few months later, she says, they messaged her through Facebook, again requesting the money.
More than a year later, Woodburn says her husband got a call on his cellphone. It was the agency again, asking for the airfare money. (Weiss says she has no recollection of this: “It doesn’t sound like us.”) “At that point,” Woodburn says, “we kind of were like: ‘Don’t contact us again or we’re going to have to get legal involved. You’re harassing us.’”
Johnson and Woodburn, along with a handful of other women, shared their stories with Undark through We Are Egg Donors (WAED), an international online support group. WAED was formed in 2013 to give donors a way to connect with each other and troubleshoot issues. “No one should feel pressured to go forward with a medical procedure they no longer consent to,” says Raquel Cool, WAED’s co-founder and a former egg donor.
WAED has a public face, where it shares broad information about egg donation. But more importantly, it has a private forum open only to women who have experience with the egg donation process. It was into this private space that a message from new member Khylee Brueggemann landed in February 2018. “Hello, need advice ASAP,” she wrote. “To note, I just got back from my physical appointment basically to make sure I’m healthy. I have NOT signed anything and they have not appointed me an attorney to sign an official Donor Agreement. I have not even taken their birth control and they’re threatening to come after me for opting out. Is this legal??”
Brueggemann was not a novice. She had completed three prior egg donations. Her earlier donations had been through two other agencies — Egg Donor America and SAI (for Surrogate Alternatives, Inc.), and had all been fine. But now she was working with a different organization called Heart to Heart Donations — one of several she’d signed up with in her late teens, in the hopes of increasing her chances of selection.
Brueggemann says Heart to Heart contacted her in the fall of 2017 saying they’d found a match. She told them she could do the donation in the new year. At first, she says, everything seemed fine. But her feeling about the donation changed the day she flew from her home in Arizona to a California clinic for a daylong health screening.
When Khylee Brueggemann decided not to follow-through with her egg donation, her coordinator with the fertility agency texted her and began to apply pressure, hinting that the intended parents, or “IPs,” might sue.
After Brueggemann made clear that she’d never signed a contract to become a donor, the coordinator seemed to imply that this didn’t matter.
In her previous experiences, Brueggemann had always been assigned to an individual nurse who was in charge of her blood work and physicals and would generally manage her day. But in this latest clinic, no one seemed to even know who she was. A few times people had to ask her name. Brueggemann recalls that one nurse even asked what she was doing there. “I didn’t feel like I was in good hands at all if I went through with it,” she says.
“I remember calling my boyfriend and I was like, ‘I do not feel comfortable with this. I do not want to go through with this.’”
She decided to call it off. She wrote an email to the agency explaining that she didn’t feel comfortable. Her coordinator, named London, texted her: “Ahh honey, i truly am sorry!!” Then London warned her that the potential donor recipients, typically called “intended parents” in the industry, are sometimes angry at dropouts and try to sue for expenses. “PLEASE know I am not forcing you, I’m not that type of person,” London wrote, “but I want to make sure you do know, they can garnish wages and bank accounts if they win.” London added that she had never seen intended parents lose.
Brueggemann pointed out she had only submitted a donor application and had not signed anything else. London acknowledged that, but wrote: “We are not a part of the process. We only know this when Attorneys contact us for social security numbers, which we are obligated to provide in legal matters.”
Soon the agency director, Fran Williams, contacted Brueggemann by email. Williams apologized on behalf of the clinic and offered to accompany Brueggemann for her egg retrieval, if that would help. She shared that she herself had been the recipient of a donated egg. But she also reminded Brueggemann that she was harming the couple. “They have already invested thousands into you as their donor for the travel cost and the testing,” she wrote.
The next day, the pressure intensified. London forwarded a message, purportedly from the intended parents, saying they were “devastated” and in a “state of turmoil” and planning to sue. She said the couple was going to go after her for the flight, the Lyft, the per diem, the medical and psychological screenings, the costs of prepping the intended mother, and for emotional distress. “[P]lease know that their Legal Rep is entitled to all your information even through the clinic,” she wrote.
“I was freaking out,” Brueggemann says, “because I am not in a position to afford a fancy lawyer.” A few days earlier, she had found WAED online and posted her plea for help. Members offered her words of support. “I was really, really, really afraid.”
Sierra Poulson, one of WAED’s three founders, also a former egg donor, was struck by Brueggemann’s frantic post. Poulson works as a labor and employment lawyer, and when it became clear to her that Heart to Heart was not going to back down, she offered to intervene. Brueggemann accepted. Poulson called the agency and said that, although she was not representing Brueggemann formally, she was speaking on her behalf, and she asked them to cease the harassment.
Agencies, Poulson says, are essentially headhunters. They make their money when they get a positive match that results in an egg retrieval. If an egg donor backs out, she says, the agency doesn’t get its fee. She speculates that Heart to Heart was trying to manipulate Brueggemann “to go through the process so that they would get paid.”
In the end, after a phone call and a few stern emails, Poulson says, the agency agreed to stop contacting Brueggemann. (Heart to Heart did not respond to a request for comment.) Williams assured Poulson in an email: “This issue is resolved.”
It's not entirely clear what a donor’s rights or obligations are in such cases. For something like egg donation, says Cahn, the George Washington University law professor, best practice would be to have informed consent and an agreement, both in writing. But oral agreements, especially if they are understood and agreed to by both parties, can also be binding, she adds: “When someone takes action based on a promise by somebody else, then that person can incur damages.”
Ubaka Ogbogu, an associate professor at the University of Alberta in Edmonton and a practicing fertility lawyer who has no connection to the cases raised by WAED, says he doesn’t think any pre-contract expenses would be recoverable. In his view, the intended parents were simply doing an investigation, to see if they wanted to contract with the donor — the same way you might do a survey on a house before you buy it, or a background check on a company before you invest. That’s just due diligence, says Ogbogu. “Because there’s nothing that the person agreed to in terms of the things you’re paying for, it’s your cost.”
That was certainly the assumption of a six-time donor, Mia, who asked not to use her full name to protect her privacy. Last summer, she pulled out of her seventh donation after she landed her dream job. She had enough experience with egg donation to know that she wouldn’t be able to spare the attention and the time off that the process demanded — and she knew that she hadn’t locked in with a contract.
Like others, though, after she withdrew, Mia says she was hounded by emails and phone calls from the agency, Conceptual Options. “I am in complete shock, and I don’t know how to give this upsetting news to the IP’s,” said one email from her agency, referring to the intended parents. “They will be devastated, as they have been waiting for a donor like you for a long time.” The email reminded her that the intended parents had “invested several thousand dollars” and could ask for that money back. “I hope that none of this will happen, and there is a way that you will reconsider and do this cycle for them.”
Mia was angry that the agency appeared to be trying to make her feel guilty. But she was even angrier that they took her for a fool. “I’d donated many times before this and, it varies from where you are actually physically donating, but most of the time you have to sign a legal contract, you have a lawyer that is representing you,” she says. This time she hadn’t done that yet. “I wasn’t stupid,” she says. “I was fully aware of what I had signed and what I was doing and they just thought that they could threaten me.”
She says she kept telling the agency no, and eventually they backed off.
Although Conceptual Options could not comment on this specific case for confidentiality reasons, T.C. Johnston, a lawyer who represents them, said that there is never an intent to pressure. “We can understand how that could have been interpreted as pressure, but it’s not pressure,” he said. “It’s ‘Here are the potential ramifications of your actions.’”
Many contracts do contain clauses promising reimbursement of costs incurred, and even savvy donors sometimes sign them. Ogbogu thinks such clauses bring an element of duress to the arrangement, because they might make a donor decide to carry on when she really felt it was in her interest to stop. He says he would advise to remove that clause. “The only way that clause remains is if they did not get independent legal advice, or they got bad independent legal advice, or they ignored their independent legal advice.”
Cool says that WAED hasn’t heard of any cases where a donor decided to continue with a donation or pay back money as a direct result of harassment and pressure. And Johnston, the attorney for Conceptual Options, said that in all its years in business, the company had never pursued a donor for reneging. “That’s bad form,” he said.
But Julie Johnson, who decided after her experience never to donate, says she imagines it probably happens. “The way that they threaten you, I’m sure someone would just pay it,” she says. “Because they want it to go away, and they want it to be over. Maybe they don’t have the resources that I have to talk to a lawyer. They just panic and pay it.” Even Woodburn, who felt the agency had no right to ask for reimbursement for the flight, admits she probably would have just paid the money back if she’d had it.
For her part, Cahn says would-be donors need to be more aware of their rights and obligations going in. “It’s your body,” she says. “You have a right to say, ‘I don’t want this to happen.’ At any point, you have the right to stop it, absolutely.”
Still, if a woman signs a contract with full knowledge of what’s being agreed to, Cahn adds, it will in most circumstances be binding.
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