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.