Why Do I Need a Lawyer for Surrogacy?
This question gets asked a lot—“Why Do I Need a Lawyer for Surrogacy?” Ready to learn why?
I don’t care if you are matched with your own sister, who you love and trust completely. Or with your best friend you have known since first grade. You MUST have your own lawyer for surrogacy. And your sister, best friend, whoever it is also needs her own lawyer. This is true for surrogates, and also true for intended parents.
So that makes at least two lawyers per match because spouses can share a lawyer. The lawyers must be from different law firms (we refer to this as “independent” lawyers). And your lawyer needs to be either an experienced surrogacy lawyer or being actively mentored by an experienced lawyer. Both the American Bar Association and the Academy of Adoption & Assisted Reproduction Attorneys have mentorship programs for junior assisted reproductive technology lawyers.
Why is this so important? Because whether your contract is valid and whether the intended parents can become legal parents of the child can depend on this. If you share a lawyer, or only one of you has a lawyer, you risk both validity of your contract and legal parentage of the child. Those are some pretty big risks to take with an undertaking as important as having a baby. Here’s why these problems can arise:
1. Conflicts of Interests: Lawyers are bound by professional conduct rules and generally cannot represent two sides to a contract (it’s called a “conflict of interest”). This applies to pretty much all types of cases, not just surrogacy. A surrogacy contract made with one lawyer representing both sides can be found invalid by a judge. And once your surrogacy contract is found invalid, the intended parents may lose their legal rights that were meant to be established under the contract—this includes the legal right to be parents of the child. And the surrogate can end up with parental rights she doesn’t want.
2. State Laws: In some states, the law specifically requires two separate lawyers. If you don’t have two separate lawyers for the contract, the contract is not valid and once again the legal rights of the intended parents are put at risk.
3. Your Best Interests: Your best interests are protected by two lawyers. Your lawyer’s job is to give you the best possible legal advice for YOU. Your lawyer cannot do this when he/she has to give advice to everyone. Even when you are very close to your surrogate or intended parents, there are still important things that need to be worked out in the legal process. For example, how long will the surrogate’s post-birth lost wages be paid? And what will happen financially if the surrogate is put on bedrest?” Or how will you handle things if the baby has Down Syndrome? These are, frankly, unpleasant things to talk about, even if you guys know each other well. It’s nice to have your own lawyer who can inform you of the legal pros and cons of the proposed surrogacy contract terms. And then YOUR lawyer can advocate for the best contract terms for YOU.
4. Avoid Mistakes: If you try to navigate the surrogacy contract process yourself, it can be confusing and you can miss important details that can negatively impact your journey. For example, as a surrogate you may not know that you can request that a cap of lost wages be removed. Your lawyer will help your navigate important details like these to make sure your contract represents your interests.
5. Legal Requirements: Your lawyer’s job is to make sure the contract meets relevant legal requirements. Some states, like New Hampshire and ( very soon) New York, have very specific requirements of what must go in the contract. Your attorney will take care of these details. Other states, like Massachusetts, don’t have specific surrogacy contract requirements, but attorneys know what local judges like to see. These are the kinds of nuances that you cannot adequately handle representing yourself.
6. Fertility Doctor: Your reproductive endocrinologist (the fertility doctor) may require it. Savvy REs know that they and their surrogacy patients are best protected when the patients have independent lawyers. The doctor will likely require a letter from one of the layers confirming that two separate lawyers were utilized.
So I’ve talked a lot about surrogacy contracts. The other big legal step in the process is the court order. This can be called a parentage order, birth order, pre-birth order, and so on. What is the same is that one lawyer still cannot represent everyone for the court order phase. What’s different is that it’s generally OK for one lawyer to represent one side and the other side to go without a lawyer. When you do your contract, your lawyer can explain to you how the court order process will work for your match.
So now you know the ins and outs of why New England Surrogacy requires two separate attorneys for each surrogacy match. Interested in learning more about becoming an intended parent or surrogate? Contact us today to set up a free consultation.