Importance of Surrogates or Donor Having an Independent Third Party Assisted Reproductive Attorney
In any surrogacy or donation of genetic material matter in the United States, the standard arrangement is for the intended parent(s) to have an attorney to draft the applicable agreement based on the applicable state law. International intended parents may also have an attorney in their home country to ensure they are in compliance with any international laws for purposes of when the child returns home from the United States. It is also a best practice, and sometimes required by state law, for the surrogate or sperm/egg/embryo donors to also be separately represented by a different third party reproductive attorney which attorney is typically paid for by the intended parent(s).
When an independent attorney is not required by state law, parties sometimes want to proceed with just one attorney for the intended parents for a variety of reasons, some reasons being that they may want to save on the cost of a separate attorney for the surrogate/donor, or the surrogate/donor has stated that she feels comfortable with the legal documentation without the need to consult with her own independent attorney. Having separate lawyers for the intended parents and donor is an important piece of a third party reproductive journey and not a cost that should be cut.
There are many nuances of surrogacy and donation agreements that a surrogate or donor may not be aware of when embarking upon the legal stage of the process. Having their own attorney to explain their rights, obligations, and to ensure that the surrogate and donor are legally protected is important to make sure that they are aware of these types of issues before proceeding with such an important journey.
For example, in a surrogacy matter, when intended parents and a surrogate self-match without a surrogacy/donor agency (as agencies always require some form of escrow account for contract payments), the parties may agree to proceed with their journey without an independent escrow company to hold the funds to be paid to the surrogate pursuant to the agreement. Without the surrogate having her own attorney to consult with about the importance of an escrow account and how it protects her to ensure there is money set aside and protected for the contractual payment obligations during the term of the agreement, she may not know or feel comfortable to express her desire to request an escrow company. There are many legal points within a surrogacy or donor contract that a surrogate/donor may not be aware of to ask for that are standard payments or contractual language which could later be detrimental to a surrogate or donor. Also, without an independent attorney, a surrogate or donor may not feel comfortable speaking directly to intended parents about payments or terms they want included in an agreement and having their own attorney can help be an advocate for the surrogate/donor.
Pursuant to the American Society for Reproductive Medicine ("ASRM") on "Recommendations for practices utilizing gestational carriers: a committee opinion", https://www.fertstert.org/article/S0015-0282(16)63005-4/pdf:
Gestational carriers must have ongoing independent legal representation by an appropriately qualified legal practitioner who is experienced with gestational carrier contracts and who is licensed in the relevant state or states, or in the event of an international arrangement, in addition to any relevant states, the intended parent(s)' home country.
The ASRM guidelines also establish best practices for gestational carriers and their spouse/partners to be advised explicitly of the risk involved in surrogacy in order to have informed consent for the process, and explained the importance of confidentially within the surrogacy arrangement. These best practices of a surrogate and her spouse/partner to be independently represented carries over to egg/sperm/embryo donors also having their own attorney, and paid for by the intended parents, to guide them on the legal implications of the arrangement they are entering into.
In most instances when a surrogate has an attorney, the first encounter the surrogate has with her attorney is for the review and negotiation of the surrogacy agreement. In some states, a surrogate may also need to be separately represented during the parentage proceedings to either review documents or appear in court on behalf of the surrogate. When entering into a surrogacy arrangement, the parties should be aware of what type of legal assistance will be required for the surrogate and whether the intended parents will be paying for all stages of the surrogate's legal representation. The surrogate may also need certain estate documents prepared as required by the surrogacy agreement which also needs to be discussed whether the intended parents will pay for those documents to be prepared.
Importance of Intended Parents' Having a Third Party Assisted Reproductive Attorney
Not only is it important for a surrogate or donor to have her own attorney, it is imperative that the intended parents' attorney who is typically the attorney drafting the applicable agreement be an experienced third party reproductive attorney. For example, an intended parents' surrogacy agreement should not be drafted by their friend's neighbor's friend who is a real estate attorney. Boilerplate forms off the internet should also never be utilized. Selecting an experienced reproductive attorney is critical to ensure that the matter is handled properly for everyone's sake.
Since each state has different laws regarding surrogacy/egg/sperm/embryo donation, it is also important to discuss with the potential attorney what law applies to the match to make sure the correct state law is being utilized and that the matter does not violate any applicable state laws.
The ASRM guidelines on "Recommendations for practices utilizing gestational carriers: a committee opinion", https://www.fertstert.org/article/S0015-0282(16)63005-4/pdf, provide that:
Intended parents must have ongoing legal counsel by an appropriately qualified legal practitioner who is experienced with third-party reproduction and licensed to practice in the relevant state or states, or in the event of an international arrangement, in addition to any relevant states, in the intended parents(s)' home country"