Choosing the Right Surrogacy Attorney
Whether you are hoping to become a parent through surrogacy, or want to act as a surrogate to help someone else become a parent, choosing a surrogacy attorney is one of the most important decisions you will make. Unless you have been through the process before, you may be unfamiliar with the legal aspects, and why it is important to have a surrogacy attorney—and the right surrogacy attorney for you.
Do I Need a Surrogacy Attorney?
In a word, yes. In addition to being a medical process, surrogacy is also a legal process, affecting the rights and relationships of multiple people, whose interests may come to conflict with one another. Each party must be represented by an attorney to ensure that their legal rights are protected and that unnecessary disputes are avoided.
A surrogate and intended parent(s) cannot be represented by the same attorney; that is a conflict of interest. That means you will probably need to find your own lawyer or receive a referral from an agency or fertility clinic.
What Does a Surrogacy Attorney Do?
A surrogacy attorney’s primary role is to ensure that you understand your rights and responsibilities, and that your legal interests are protected. One of the surrogacy attorney’s primary responsibilities is drafting or reviewing the surrogacy contract between you and the other party. The surrogacy contract is legally binding and addresses issues that will or may arise during the process, including:
- The intent of both the surrogate and the intended parent(s) in entering into the agreement, including the intent that the intended parent(s) be recognized as the legal parent(s) of any child born through the surrogacy
- The rights and responsibilities of both the surrogate and the intended parents under the agreement
- The amount of reimbursement or compensation the surrogate will receive for her services, and what other expenses (such as maternity clothing) for which she will be reimbursed
- Establishment of an escrow fund or trust from which surrogacy costs, such as compensation to the surrogate and reimbursement of expenses, will be paid
- Nature of the medical procedures the surrogate will undergo
- Terms of the intended parents’ involvement in medical decisions for their child during the pregnancy
- Provisions to protect the confidentiality and privacy of all parties
- Restrictions on conduct that could affect the health of the surrogate or pregnancy, such as smoking, substance use, travel, risky recreational activities, etc.
- Terms of the mode and frequency of communication between intended parent(s) and surrogate
- How certain contingencies will be addressed, such as a multiple pregnancy or health issues
- Health insurance information for the surrogate, intended parent(s), and child
- Provisions for how any disputes that arise during the process will be resolved
Another critical role a surrogacy attorney plays is obtaining pre- or post-birth surrogacy orders that establish the intended parent(s) as the legal parent(s) of any child born through the process.
While surrogacy attorneys are essential for legal and ethical reasons, they do not do everything. If you need to match with a surrogate or want case management services, those things are the province of a surrogacy agency. Consequently, it is typically best for intended parents to consult with a surrogacy attorney before being matched through an agency or independently. Of particular note, the journey will be evaluated based on the law of the state where the surrogate lives. If you are an intended parent and your surrogate lives in South Carolina, you will need a South Carolina surrogacy attorney.
What Should I Ask a Surrogacy Attorney?
While there are relatively few surrogacy attorneys compared to the number of lawyers who practice in other areas, you still have options—and the field of assisted reproductive technology (ART) law is growing. However, you should still make sure that your attorney has the experience you need, are credentialed by professional organizations who focus on the advancement of ART, and that you are comfortable working with them.
Surrogacy is often, and rightly, described as a journey. It is a long, emotional, and potentially stressful process, whether you are a surrogate or an intended parent. The guidance of the right attorney can make the process easier and ultimately, more joyful, since you will be at peace that the legal details are being managed.
Here are some things you will want to ask when meeting with a surrogacy attorney:
- What experience do you have with surrogacy matters?
- How many surrogacy matters have you handled in the past few years?
- Do you primarily represent surrogates, intended parents, or both?
- Are you able to work with clients who live outside of your state (if relevant)?
- What percentage of your practice is surrogacy or ART law?
- How long does it usually take you to get back to a client when they contact you?
- What services do you provide? Are there any legal services that might need to be outsourced?
- What can we expect in terms of cost, both for legal services, and for the overall process?
Even if an attorney gives all the “right” answers, you should not retain an attorney unless you feel comfortable with them. While your attorney is not a caseworker or therapist, you will be working closely with them on highly personal and emotional matters.
To learn more about choosing the right surrogacy attorney for your needs, contact Brinkley Law Firm to schedule a consultation.