In Beyond Compensation: Egg Donor Expenses and Financial Liability (2 of 3), we listed a few reasons why we do not support penalty clauses in egg donor contracts. Here are a few more.
Penalty clauses in egg donor contracts are unduly coercive.
Although unenforceable, they do serve a psychological purpose: coerce the donor into compliance. Reasonable compensation already serves as an incentive; no additional one is needed. Furthermore, by the time the egg donor has come to the contract stage, she has already demonstrated her compliance by showing up to all her screening appointments and following all the instructions of the medical staff, for which she has received no compensation at all.
The ASRM places caps on egg donor compensation in order to avoid undue coercion; threat of severe financial penalty is just as coercive as enticement through exorbitant compensation.
Penalty clauses in egg donor contracts undermine good will.
Contractually threatening to sue your egg donor can only sour the donor’s attitude toward you and the altruistic motives that compelled her to donate eggs in the first place.
An egg donor contract is unlike any other legal document: it is a statement of intentions and good will between two parties in a unique relationship. Recipients should honor and respect their donor, and express gratitude for her efforts to help them conceive. In turn, the egg donor will follow her medical instructions in the hopes that the donation will be successful. Most egg donation procedures indeed follow this sensible formula.
However, treat your donor like a potential enemy, and you risk turning her into one.