Surrogacy Lawyers: Why You Need One, How to Choose One

Surrogacy Lawyers: Why You Need One, How to Choose One

Q & A by Texas assisted reproduction attorney Simi Denson

 

Q: I’ve seen surrogacy contracts on the internet. Can I just use one of those?

A: Please don’t! Experienced surrogacy attorneys spend years developing and modifying gestational agreements, to be sure they address changes in the law and anticipate the ever-changing list of issues that may arise during surrogacy. Technology changes at a breakneck pace and contracts adapt to reflect those changes. A contract today looks much different than a contract even a year ago. Plus, your gestational agreement will be specifically drafted to your own preferences and the informal agreements you made during the match phase. Don’t make the mistake of using an out-of-date and ill-fitting agreement.

 

Q: I agree that having a lawyer is a good idea. But do we really need two? Can’t one lawyer represent both of us? We agree on everything already!

A: No, one lawyer may not represent both sides of a gestational agreement. At the contract negotiation phase, the parties have potentially different interests, even if they go into it being pretty sure they agree on everything. This is a conflict of interest, and lawyers are ethically prohibited from representing parties where there may be a conflict of interest.

Beyond that, if your lawyer is a member of the Academy of Adoption & Assisted Reproduction Attorneys, he or she is obligated under the AAAA Code of Ethics to ensure that the gestational carrier has independent representation. ASRM also requires independent legal representation for all parties, as do several other professional organizations. Independent representation is widely seen as a best practice.

Finally, judges expect it. When I present a gestational agreement to the court to get a pre-birth parentage order, the first question the judge asks me is usually “did everyone have a lawyer when they negotiated this contract?” The judge is trying to make sure everyone was protected and that the surrogate was not exploited or coerced into entering the agreement. It’s important for not just your case but for surrogacy in general that we show judges that we are doing things on the up and up and that everyone’s legal rights are protected.

 

Q: How do I choose a surrogacy attorney? Do I have to use the lawyer my agency recommends?

A: You do not have to use the attorney your agency recommends (although the ones they recommend might be great!)—you can choose the lawyer you feel is the best fit for your needs. Here’s a great post from AAAA on what to consider when choosing your attorney. My overarching advice is don’t pick someone who dabbles in surrogacy (or worse yet, who has never done a surrogacy case—like your college roommate Mary, who is a corporate lawyer). There are a handful of us who do this work a lot, and we all wince a little when we get a contract from a lawyer we have never heard of—not because we’re mean or trying to protect our special club, but because there’s a good chance that contract is going to be a total mess. Our little corner of the world is unique (and wonderful, by my mind) and it takes a few years and several hundred contracts to get the hang of it. Look for the people who have put in that work and you’ll be happier for it.

 

Q: I’m not looking forward to the contract stage at all. Is there any way to make it less awful? I don’t want this to be like a business transaction.

A: Yes! First of all, have great lawyers on both sides. If they are good communicators and experienced ART attorneys (and generally nice people—this is a collaborative process, after all), things will go more smoothly. Second, reach out to your lawyer early in the process. When your agency asks you to come up with agreed compensation and fee amounts, if you have any concerns, feel free to run those numbers by your lawyer. Everything is so much easier when you can make all of the financial agreements ahead of time, outside of the full gestational agreement. That also keeps you out of the awkward situation of agreeing to something on the fee sheet because you feel like it’s normal or expected and then realizing later, when a lawyer is involved, that maybe “typical” does not work for your situation. Lastly, take advantage of your joint session during psychological screening to really talk about important issues like termination (abortion), what will happen if there is a medical need for bedrest, and how many embryos to transfer. If everyone has a solid mutual understanding of their positions on these issues, it makes it much easier to craft contract language that reflects your agreements.

 

Go into contracts with optimism and an open heart. It can be uncomfortable negotiating the nitty gritty details in the contract. Intended Parents sometimes feel nickel-and-dimed, gestational carriers sometimes feel awkward balancing not wanting to seem greedy with making sure their families are protected. Try to keep perspective, ask for what you need to make this the experience you envision, and let your lawyer be your counselor and advocate. This is one of the last and most important steps before you move onto embryo transfer—do it right, but don’t let it make you crazy.

 

Simi Denson is a Texas attorney and the executive director of PrimaVita Surrogacy. Simi has been practicing law in Texas since 2003, with an assisted reproduction focus since 2009. She represents intended parents around the world and surrogates from throughout Texas and works with both agency-represented and independent parties. She is an ART Fellow of the Academy of Adoption & Assisted Reproduction Attorneys and previously served on its Board of Trustees. She was a gestational carrier twice herself, delivering a baby boy in 2010 and boy-girl-boy triplets in 2013.