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Balance rights of children, egg donors and intended parents

Posted on September 23rd, 2009 in Egg Donation | No Comments »

One of my areas of interest is how to balance the rights of the future child with that of the egg donor and the intended parents.

I had an example this year when, this Spring, I represented my client for the second time in 23 years – the first time as a nine month old, born in another state, when I finalized his MA adoption in 1986 and the second time in 2009 when I petitioned the MA Probate and Family Court to appoint a Guardian Ad Litem to find the birth mother since my client had a severe genetically related medical condition and faced major surgery unless his treating physicians could obtain more medical information on how this condition was treated with my client’s blood relatives who had this condition. The out of state adoption agency, which had the most complete records, had gone out of business and my 23 year old records were long gone (MA requires attorneys to keeps files for 6 years from completion of the legal matter). Long story short, the court appointed GAL found the birth mother and it turned out that she and her two daughters had been looking for my client – excellent medical and social ending.

How should we provide, at a minimum, for contact routes which will survive the test of time as here – say 10 years plus after the birth of the child via egg donation?

Some suggestions for ART agreement drafters

Posted on May 19th, 2009 in Egg Donation | 3 Comments »

1. Have it notarized

Egg donor and gestational surrogacy agreements attempt to set forth, in a logical and hopefully balanced way, the understandings and responsibilities between usually non-attorney parties in a context of potentially great anxiety around the issues of infertility and longing for parenthood. It is therefore critical that all reasonable efforts be made to ensure that the parties understand the contours of the legal relationship which these agreements are establishing between them. For this reason, it is considered good practice that each of the parties are represented by counsel (with husband and wife permitted to share counsel in the absence of actual or suspected irresolvable conflict between them) with regard to the issues addressed in the agreement.

Many agreements provide simply that the parties sign and date the agreements. In the case of egg donor agreements, where all parties have code numbers, the execution of the agreement usually features the signatory’s code number rather than actual name.

A potential legal problem presented by this procedure is if there is an alleged substantial breach of the agreement by one party (or parties) leading to an effort by the other party (or parties) to seek sanctions under the agreement. In order to enforce or seek sanctions under the agreement, the potential plaintiff(s) must prove the identity of the defendant signatory(ies) and that same understood the agreement. This is made more difficult if the parties do not execute the document before a notary public, who requires legally cognizable identification by the signatory and who asks if the signatory is signing the document of same’s free will and with full understanding thereof.

Where signatory names are confidential, the notary public execution page can be maintained separately so that the confidentiality of the signatories is maintained, with sanitized copies of same provided to counsel for the other party (parties).

2. Egg donation agreements – reporting of future health issues – make it both ways

Most egg donation or ovum donation agreements include a health notification provision which states that if a child is born as a result of the egg donation and an unforeseen health problem arises, the parties should communicate with regard to same via the matching agency or counsel. This language should be made more specific and set forth that the egg donor is obliged to contact the matching agency or counsel should she become aware, at any future time, of a medical condition, which could affect the child born of her egg, of which she was unaware at the time of her egg donation and which was not revealed during the medical screening which occurred at the time of her egg donation. Similarly, there should be specific language that the intended parents of a child born from egg donation are obliged to notify the egg donor, through the matching agency or counsel, of any previously unknown medical condition of the child which could result from a medical or genetic condition of the egg donor so that she will be made aware of same given its potential relevance to her health and that of any future children conceived by her donation of eggs or conceived by and parented by her.

Herbert D. Friedman, Esq.