Why is My Fertility Doctor Insisting on a Lawyer for Our Surrogacy Match?

Fertility doctor shows icon of female uterus. Fertility, surrogacy, and assisted reproductive technologyconcept.

If you have been consulting with a fertility doctor, and have reached a point in the process where you have decided to build your family through surrogacy, you are probably wondering about next steps. Your fertility doctor may have recommended that you work with a lawyer for surrogacy, and there are good reasons for that. Surrogacy affects the rights and responsibilities of not only the intended parents, but the gestational carrier. Throughout the surrogacy process, including your surrogacy match, an attorney can help to advise you of your rights and ensure that necessary steps are being followed to make the process successful for all.

Here are some of the many reasons you should work with a surrogacy attorney:

To Find A Gestational Surrogate

It’s one thing to realize that surrogacy is the right choice for building your family. It’s another to find and match with a surrogate. Not every surrogate is a good fit with every intended parent, and vice versa. When you are dealing with real people and an emotionally and physically demanding process, it’s important to have values that align and to get everyone on the same page. An attorney who regularly assists intended parents will be able to connect you with agencies and other resources to help you find the right match sooner.

To Draft the Surrogacy Agreement

Surrogacy is a legal relationship, and a formal agreement is necessary to protect all parties to the relationship and make sure everyone understands their roles and obligations. The agreement may cover common issues, such as how the surrogate will be compensated and what medical care she will receive, and unlikely ones, such as the circumstances under which the pregnancy might need to be terminated.

Just as important, a surrogacy agreement is a requirement set forth by the American Society for Reproductive Medicine (ASRM). ASRM sets the ethical standards for fertility clinics in the United States and the guidelines issued represent the standard of care required. Under the guidelines, ASRM requires, among other things, that both parties have independent legal counsel and a valid surrogacy agreement prior to embryo transfer. This is to manage expectations, understand rights and responsibilities, to ensure ethical compliance, and to set the foundation for legal compliance in the state where the child is born.

When drafting your agreement, your surrogacy attorney will consider all contingencies, however remote, so that both you and your surrogate can reach agreement. Your attorney represents only you in the making of this agreement, so your surrogate will need her own attorney to represent her interests. By having proper representation, you ensure that the journey is ethical and legally compliant for your ultimate goal, a birth certificate with the proper parent(s) listed.

To Streamline the Surrogacy Process

Becoming a parent should be a joyful event. While most journeys to parenthood, whatever path they take, involve some anxiety, it’s ideal to reduce stress whenever possible. That’s especially true when the road to parenthood includes a legal aspect.

Many, if not most, intended parents have never been through the surrogacy process before. Being unfamiliar with the legal road ahead not only makes the process more stressful, but increases the risk that an error will derail or complicate the process. An experienced family formation attorney will:

  • Explain the surrogacy laws in your state (they vary significantly from state to state, and some states have no surrogacy laws at all on the books)
  • Help you to understand your legal rights and obligations, and any risks involved in surrogacy
  • Assist you in filling out the necessary legal documents for surrogacy
  • Help to ensure that any other professionals involved in the surrogacy process, such as your doctor, comply with legal aspects of surrogacy requirements

The surrogacy process is emotional enough as it is. You don’t want unnecessary legal disruptions to make it harder.

To Help Manage Your Expectations

Theodore Roosevelt famously said, “Comparison is the thief of joy.” So are unmet expectations. When you have a certain idea about how the surrogacy process should be unfolding, and things aren’t going the way you think they should, it’s easy to slip into an emotional spiral.

Not only can your surrogacy attorney’s guidance help streamline the process, but help keep it more joyful for you by helping you manage your expectations. While this is probably your first time through the surrogacy process, your attorney has helped many other intended parents navigate surrogacy. She understands the legal landscape and can prepare you for what to expect. That can help you feel more in control, and help you to feel more positive about the surrogacy process. Knowing what to expect may not change the process, but it will change your ability to deal with it.

To Establish Your Parentage of Your Child

The purpose of surrogacy is to build your family. Surrogacy severs any legal right your surrogate may have as a parent, and creates your legal parenthood. The bottom line is that all of your careful planning and preparation won’t matter if you can’t establish parentage. This is one reason that it is critical to work with an experienced surrogacy attorney.

As noted above, surrogacy law varies from state to state. In general, depending on the state’s laws, this may be accomplished by a pre-birth court order, a post-birth order, or adoption may be required. In South Carolina, it is possible to obtain a pre-birth order in many circumstances. That’s ideal, allowing you to be named as parent on your baby’s birth certificate, and to take your baby home and begin your life together as a family. Your surrogacy attorney can make that happen.

If your fertility doctor insists on you using a surrogacy attorney, you should listen. Your doctor has probably seen many intended parents work with surrogates, and knows that an experienced lawyer’s help can best protect you and your child. If you have questions about what a surrogacy lawyer can do for you, please contact Brinkley Law Firm, LLC to schedule a consultation.