Legal Question in Consumer Law in California

Our doctor recommended as part of our fertility treatment that we find an egg donor. The way it works with every agency we encountered is you find a donor from its database then pay the fee & sign the paperwork after the selection has been made.

We examined several banks & found someone we thought would be suitable. According to the agency, the egg donor we selected had never before been through the process but was available & happy to proceed. Because of the anonymity, we had no choice but to rely on the information provided by the agency which touts its stringent screening process & evaluation program as part of its marketing. Until we signed the contract & paid the fee, we were privy only to the the on-line data & what was verbally communicated by agency personnel.

To our amazement, everything came to a screeching halt when the egg donor showed up for her appointment with our doctor. The office staff recognized her & looked through their records. It turned out that she had donated previously with their office. As soon as our doctor learned of the fraud, she stopped the process & informed the agency they had put this person in their database under false pretenses.

We've been told when both parties to a contract were mistaken regarding a fact essential to the contract & one would not have entered into the contract if that fact would have been known, then no contract is formed according to California law. But that is not they way the agency sees it. They are holding us to the contract since it includes a disclaimer stating the agency cannot guarantee the accuracy or truthfulness by the egg donor in any written or verbal communications.

What exactly does this disclaimer mean & what options do we have if any?


Asked on 12/22/10, 4:32 pm

1 Answer from Attorneys
George Shers Law Offices of Georges H. Shers

The agency is wrong. Their disclaimer is valid as to what is covered; they are not liable in damages if the egg donor lies and a reasonable person would not have been able to detect that lie. There is a question as to whether they were negligent in not finding out that she had donated before, as presumably all fertility Dr.s keep records and perhaps even photos of donors. Your contract with them was that if they produced an egg donor with certain characteristics and who was suitable to donate eggs, you would pay them a certain amount. They did not produce such a women so they are not entitled to any payments. For any work the did do, they need to go after the donor to recover their damages, but you did not cause those problems.

The one weakness in the argument is does the fact that she lied about not donating before a sufficient basis for your dr. to reject her.

I assume several thousands of dollars are involved, so that it is worthwhile to hire an attorney to made a demand letter and hope that your having an attorney representing you will scare them enough to settle. Almost any attorney with tort experience could write such a letter. There can be a big difference in the hourly charge; speaking to you for more details and writing the letter should not take more than 2 hours.

not proof read

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Answered on 12/28/10, 12:09 am


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