As you prepare for your surrogacy journey, the question of whether you need a surrogacy lawyer may arise. The short answer is yes. Here’s why:
You may have decided to have a baby with the help of a surrogate, and since there are private agencies that help with this, you are all set.
Or, maybe you are considering becoming a surrogate, and since you are working through an agency or you are a friend or family of the intended parents, you think you are all set.
But you aren’t. Attending a consultation with an attorney who specializes in fertility and reproductive law will show you:
- How you can put safeguards in place to ensure the outcome you want, and
- How to avoid or preempt the things that can go wrong with the surrogacy process.
No matter what kind of surrogacy journey you decide to pursue, most surrogacy professionals recommend against entering into a donation or surrogacy agreement without first consulting a reputable attorney specializing in third-party reproduction.
What Is a Surrogacy Lawyer?
A surrogacy lawyer is one of the many necessary specialists to pursue a surrogacy journey. This kind of professional is also known as an assisted reproductive technology (ART) lawyer.
Surrogacy attorneys must undergo the same certification process as any other lawyer. They often have years of experience before they even start practicing on their own. This kind of lawyer can deal with the legalities of all kinds of assisted reproduction, like surrogacy, egg/sperm/embryo donation, and also the legal process required to get parental rights.
What Does a Fertility Attorney Do?
Surrogacy lawyers provide legal guidance and support to intended parents and surrogates. They will discuss your needs and goals with you and advise you as to the types of surrogacy that are available to you. Having guided other clients through the process, they can tell what you can expect in terms of timeline, costs, and challenges that could appear, as well as answer any doubts you may have.
The surrogacy process can be overwhelming emotionally, financially, and legally. Intended parents can relieve themselves of some of this burden by retaining a fertility lawyer to guide them. On the other hand, surrogates may want to consult an attorney of their own to ensure their rights are protected.
Why Do You Need a Surrogacy Lawyer?
At present, each state in the US and province in Canada has different surrogacy regulations to be followed. Often, these laws and regulations are complex and evolve constantly. If any of the parties involved in a surrogacy agreement don’t follow them exactly, there can be criminal consequences. This is a major reason why surrogacy attorneys are key professionals in any surrogacy journey.
As a result, family lawyers are a must for intended parents, surrogate mothers, and egg donors going through a surrogacy or egg donation process.
A surrogacy lawyer will always work to protect the rights and interests of their client.
How a Surrogacy Attorney Can Help You?
A legal professional will help to:
- Draft an enforceable surrogacy agreement that protects the rights and interests of both parties involved and cover all potential risks and liabilities of the surrogacy process.
- Establish parental rights through appropriate legal actions (like pre-birth or post-birth orders).
- Ensure you meet any specific local requirements.
- Be your legal counsel during the whole surrogacy process.
Suppose you are looking to pursue a surrogacy journey. In that case, you must work with an experienced surrogacy lawyer before starting any medical process. Indeed, top fertility clinics will not allow the medical process to begin until a signed surrogacy agreement is presented.
How Much Does a Surrogacy Lawyer Cost?
It is inappropriate for a fertility lawyer to charge contingency fees. Instead, fertility lawyers charge either a flat fee or by the hour.
Suppose you find a surrogacy attorney you are comfortable with and have confidence in charges a flat fee. In that case, that is ideal because you will know your legal fees in advance and can budget for that. Some problems may arise during the surrogacy process, and hourly billing could cause legal fees to skyrocket. Flat fees are a way to have surrogacy lawyer costs under control.
Some fertility lawyers offer a hybrid flat fee/hourly fee arrangement whereby the flat fee covers the “usual” or” routine” surrogacy legal services. If anything unusual arises, an hourly fee is charged for handling that.
How Do You Find a Fertility Lawyer?
Like finding the right surrogacy agency, choosing the right surrogacy lawyer will take some research and understanding what you need from them.
If you decide to work with a surrogacy agency, your specialist will likely have a list of reputable lawyers specializing in third-party reproduction that their organization often works with.
There are also blogs, forums, and chat rooms dedicated to surrogates and intended parents. You might seek recommendations there. Talking with other intended parents (or surrogates) might also yield a recommendation to retain or avoid!
Regardless of where recommendations come from, it would help if you met with the lawyer before retaining him. If you sense any red flags at all, do not hire that attorney. This professional is someone you will work closely with during this highly personal and emotional process, so be picky.
The right attorney for you will:
- Inspire confidence that the process will go smoothly and any potential problems anticipated and solved;
- Be warm yet professional;
- Listen to you;
- Answer your questions and ask follow-up questions;
- Have information readily available, such as sourcing gestational carriers or egg or sperm donors;
- Explain the contractual obligations of each party under their jurisdictions’ laws and have template contracts prepared;
- Have staff who you can reach easily with questions;
- Explain communication expectations from everyone. For example, if you send an email or call the office, that email or call will be answered within 24 hours, and vice versa;
- Explain clearly how funding the surrogacy will work and handle the monetary transactions for you;
- Describe the possible problems that could arise and how they would be handled;
- Be upfront with the costs and fees associated with representation and surrogacy.
Questions to Ask Your Surrogacy Lawyer
Take the time to speak with several surrogacy attorneys. As you talk with each lawyer to decide if they are the right professional for you, here are some questions to ask:
- How long have you worked in assisted reproductive technologies?
- Where are you licensed to practice?
- What is the average cost of the cases you’ve handled?
- Do you bill by the hour or charge a surrogacy flat fee?
- Do you require a retainer fee?
- Will you help me find a gestational carrier? If not, how do we do that?
- Will you manage payments to the carrier and others?
- Could I speak with a few current or past clients?
- How many surrogates and intended parents do you typically work with at a time?
- How long have you been practicing law?
- How will you help me identify and protect my surrogacy goals and preferences?
- What does your contract negotiation process look like?
Last, trust your instincts. Whether you intend to become a parent through surrogacy or you are considering becoming a surrogate, don’t hesitate to refuse to work with a surrogacy lawyer you feel uncomfortable with or who you have doubts about. Surrogacy is too sensitive and personal a process to trust someone who does not have your full confidence.