Independent Lawyers for the Intended Parents and Surrogate or Egg, Sperm, or Embryo Donor
In each United States surrogacy and egg/sperm/embryo donation matter, the intended parents have their own attorney in the United States to draft the applicable contract and handle other related matters such as filing parentage proceedings. Intended parents may also need an attorney in their home country to ensure that their parental rights are protected once they return home from the United States to their country with the baby. It is best practice for the intended parents to pay for the surrogate and egg/sperm/embryo donor (as applicable) to have their own independent attorney as well. One attorney should not be representing all parties involved due to any conflict of interest issues.
What does the surrogate or egg/sperm/embryo donor's attorney do?
The independent attorney for the surrogate or egg/sperm/embryo donor can assist with the review of the applicable contract being prepared by the intended parents' attorney. During a contract review with a surrogate or egg/sperm/embryo donor, the applicable party should have the opportunity to discuss the contract with their attorney and ask questions to ensure they are comfortable with the contract being signed. The attorney should also confirm that the terms properly reflect the parties intent. A surrogate may also need her own independent attorney during the parentage court proceedings (to be paid for by the intended parents) or to review pleadings further into the process before she signs them, depending on the applicable state law involved in the process. Additional documents may arise during the surrogacy process which may require the surrogate to retain her own attorney to review the documents with her before she signs them which is typically agreed to be paid for by the intended parents if the document relates to confirming the parental rights of the intended parents and furthering the terms of the parties contract. Some contracts also allocate a certain amount of money to be set aside by the intended parents to assist the surrogate during the surrogacy process in case there is ever a question on the contract she needs to discuss with her attorney, or other issue the surrogate may need assistance with during the process.
Importance of Having Separate Lawyers and Best Practices
Some states, such as California, in fact require each party to have their own separate lawyers when entering into a surrogacy arrangement. In Florida, it is not a legal requirement for the parties to each have their own independent attorney but is a best practice to follow.Each party having their own independent attorney ensures that each party fully understands their rights and obligations of the contract they are about to enter into. Having independent lawyers also allows each applicable party to freely speak to their lawyer about concerns they may not feel comfortable speaking directly to the other party about. For example, an intended parent and surrogate may have discussed they are not going to require an escrow account to hold the funds for the surrogate in their initial preliminary discussions. A surrogate may not feel comfortable speaking up to the intended parents to ask for the use of an escrow account, or a surrogate may not understand the importance of having an escrow account until she consults with her own attorney about the importance of an escrow account. Each party having their own independent attorney ensure that the parties are properly counseled on the surrogacy and/or egg/sperm/embryo donation process to make sure best practices are followed and everyone is comfortable with their obligations and commitments.It is important to make sure that each party is represented by an attorney who is experienced with assisted reproductive technology since it is a very unique and specific area of law. Lawyers practicing in other areas of law should not represent the parties on a third party assisted reproductive technology ("ART") matter due to the special issues that arise in ART that may not arise in other areas of law. It is also important to speak to your preferred attorney about whether they can assist with a particular matter based on the facts of the case as each state has different laws regarding surrogacy and egg/sperm/embryo donation and a party may need to select an attorney in a specific state based on the facts of the case, such as where the parties or fertility clinic are located.
ASRM Guidelines on Separate Lawyers for Surrogacy Pursuant to the American Society for Reproductive Medicine's ("ASRM") guidelines titled, "Consideration of the gestational carrier: an Ethics Committee opinion"
, the ASRM establishes the best practice of a surrogate having her own independent attorney in the contract process:
"...compels the Committee to emphasize that carriers must have independent legal counsel whose duty of care is to the gestational carrier alone. Because of potential conflict of interests of the parties involved in carrier arrangements and the potentially intensely emotional nature of the process, access to such independent advice is crucial. To protect against attorney conflict of interest, the gestational carrier must be free to choose her own counsel with the appropriate level of skill and licensure. Costs of such counsel should not be borne by the gestational carrier, though she should not be prohibited from funding her own legal representation should she so choose"