Finding the Right Lawyer for Your Surrogacy

You’ve decided to have a baby with the help of a surrogate, and since there are private agencies that help with this, you think you are all set.

Or, 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.

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. This information is from the office of a Philadelphia child custody lawyer.

What Type of Surrogacy Are You Going to Use?

Surrogacy is but one type of assisted reproductive technology (ART) available to those who wish to expand their family, but cannot for whatever reason conceive and/or bear a child. If you’ve chosen surrogacy as the right form of ART for you, you will have to decide which type of surrogacy is right for your situation.

If you are considering becoming a surrogate, you can choose whether you want to with intended parents choosing a traditional surrogacy or choosing a gestational surrogacy.

Traditional Surrogacy

Also called “genetic surrogacy,” traditional surrogacy is what people think of when they think of surrogate mothers. The surrogate is impregnated with either donor sperm or the intended father’s sperm through artificial insemination, carries the child to term, and delivers the child. The child and the surrogate mother are linked genetically.

Gestational Surrogacy

If the intended mother cannot carry a child to term for whatever reason, but her eggs are viable, In Vitro Fertilization (IVF) is used to conceive an embryo from the intended mother’s egg with the intended father’s sperm, which is then carried by the surrogate. The surrogate has no genetic tie to the baby.

There are variations on gestational surrogacy, where either the egg, the sperm, or both are donated and not the genetic material of the intended parents.

5 reasons why you need a surrogacy attorney

What Does a Fertility Attorney Do?

Also called a reproductive law attorney, a fertility attorney specializes in ART law in your jurisdiction. Every state in the U.S. has different laws governing ART, and in order to ensure the result you want from the surrogacy, those laws must be followed. Meeting with a legal specialist in ART law will not only help you comply with the law but will ensure the surrogacy process goes smoothly.

A fertility lawyer will discuss your needs and goals with you and advise you as to the types of ART and forms or surrogacy that are available to you. Having guided other clients through the process, he or she will be able to lay the process out for you, anticipate any problems that may arise, and answer your questions.

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. Because surrogacy involves deeply personal issues, you must be comfortable discussing them with your attorney.

A surrogate mother may want to consult an attorney of her own to ensure her rights are protected in the surrogacy process. That attorney would review any contracts the intended parents’ attorney wishes the surrogate to sign and explain her rights and responsibilities in the process.

How do I choose the right fertility lawyer for me?

You have probably been considering surrogacy for some time and have done some research. There are blogs, forums, and chat rooms dedicated to surrogates and intended parents. You might seek recommendations there. If you are working with an agency or fertility clinic, you might seek recommendations there. Talking with other intended parents (or surrogates) might also yield a recommendation to retain, or a recommendation to avoid!

Regardless of where recommendations come from, you should meet with a recommended fertility lawyer prior to retaining him or her. If you sense any red flags at all, do not hire that attorney. This individual 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 each parties’ contractual obligations under their jurisdictions’ laws, and have template contracts prepared;
  • Have staff who you can reach easily with questions;
  • Explain communications expectations from everyone, for example, if you send an email or call the office, that email or call will be answered within 24 hrs, and vice versa;
  • Explain clearly how funding the surrogacy will work and handle the monetary transactions for you;
  • Explain the possible problems that could arise and how they would be handled;
  • Be upfront with the costs and fees associated with representation and surrogacy in general.

What Fees Does a Fertility Lawyer Charge?

It is inappropriate for a fertility lawyer to charge contingency fees, and this is rarely if ever heard of. Instead, fertility lawyers charge either a flat fee or by the hour.

If a fertility lawyer you are comfortable with and have confidence in charges a flat fee, that is ideal because you will know your legal fees in advance and can budget for that. There are myriad wrinkles that may arise during the surrogacy process, and hourly billing could cause legal fees to skyrocket.

Some fertility lawyers offer a hybrid flat fee/hourly fee arrangement whereby the “usual” or ”routine” surrogacy legal services are covered by the flat fee, and if anything unusual arises, an hourly fee is charged for handling that.

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 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.

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Written by Veronica Baxter
Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with Lee A. Schwartz, Esq., a busy Philadelphia divorce lawyer.

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