If you have gotten through picking a surrogacy agency (or finding Intended Parents to work with on an independent journey) and you have been officially matched, then congratulations! You are now ready for your surrogacy contract (sometimes called a Surrogacy Agreement / Gestational Carrier Agreement / Gestational Surrogacy Contract). This is the legal contract between you and your Intended Parents that will govern your journey and establish the legal framework controlling it. At this stage you should choose a lawyer to work with you to review your contract. The Surrogate’s Corner would be delighted to serve you and protect your interests during your journey. Contact Me if you would like me to represent you!
Are you required to get an attorney?
In most cases, the answer is yes; even if the answer is maybe, your answer should always be YES. Surrogacy contracts are long and complex; you want to make sure that what you are signing up for and agreeing to is customary across the industry. The states that have laws directly on surrogacy will often make it a legal requirement that both sides have their own independent attorney. This means that your attorney needs to be separate and unaffiliated from your IPs’ attorney. That way they can be YOUR advocate and to look out for what is best for you, and only you. Reputable agencies will also make it a requirement that you and your Intended Parents each have your own attorney.
How do you go about choosing one?
If you are working with an agency, they will often have a list of recommended attorneys they have worked with before. Don’t forget that you are allowed to choose your own attorney, even if they are not on the agency’s list. Hopefully, all of the options they provide to you will be familiar with surrogacy arrangements. If you are not working with a surrogacy agency, or want other options in addition the the list the agency gives you, you can Google surrogacy attorneys near you or talk to other surrogates in your state on social networking platforms and ask them who they used and if they would recommend them. You should feel comfortable with the attorney you are working with and confident that you have someone in your corner that you can trust and count on.
Many attorneys do surrogacy work as part of a bigger practice that might also handle other legal matters like adoptions, divorce, tax, or other family law practice areas. That is not a problem as long as they are comfortable with surrogacy cases and deal with them often enough that they can spot things in your contract that might be unusual. Your surrogacy agency should require that the lawyer you choose to represent you has sufficient experience with surrogacy arrangements. This is a good practice and benefits everyone in the match. There are a lot of lawyers out there after all. 🙂
What should you look for when choosing an attorney to work with?
First, check their website and find out what areas of law they practice in and find out where they are licensed. While most surrogacy arrangements don’t require your attorney to be licensed in YOUR state at the contract phase, it is not a bad idea to look. There are a couple of states that have passed recent surrogacy laws that do require all the attorneys working on a surrogacy arrangement in that state to be licensed there (Colorado and New York come to mind). For the parentage phase (discussed below) the attorney working with you will need to be licensed in the state where the court order is being filed, and that is normally in the state where you are going to deliver the baby.
Next, find out how many surrogacy contracts they draft or review in a given month/year. You will want to know if this is something they do often, or once in a blue moon. Ask them what services they will provide to you. Some attorneys view their role as providing answers to the questions you have or initiate, meaning they will only answer the questions you ask them about the contract. Others view their role more as a teacher and they will take the time to explain the important parts of the contract to you as well answering any questions you have. Either way, your lawyer will expect you to read your contract before reviewing it with them. The attorney is not going to read the contract to you line-by-line. The contract review is not like story time at the library. The contract review goes best when the Gestational Carrier has at least tried to read through it and come up with questions or general concerns before meeting with their attorney.
What if there is a dispute or disagreement about the contract later during your journey?
The attorney that works with you is almost always going to be paid by your Intended Parents. This is incredibly common and often required so that the Surrogate is not responsible for their legal fees that ultimately benefit the Intended Parents. However, the Intended Parents only pay for two stages of your legal fees: 1) the review of the surrogacy contract prior to signing; 2) review of any parentage documents that are needed prior to/after delivery to establish their legal parental rights to their baby you are carrying. Most contracts DO NOT require the Intended Parents to pay for your legal fees if you need to enforce the contract or navigate any disputes. So, what happens if there is a disagreement or dispute over the contract after it has been signed? Where do you turn to then?
One thing to ask about when selecting your contract reviewing attorney is if the attorney will continue to assist you after you sign the contract. For some attorneys who review with Surrogates, they are only agreeing to help you review your contract before signing. This is reasonable; it is all they are being paid to do. As we discussed above, your Intended Parents are normally not going to pay them for their time to answer your questions or help you resolve a contract dispute later. This means if something comes up and you do have contract questions during your surrogacy journey, they may not be committing themselves to help you through those. They might be willing to help you if they are going to get paid for their time. But, if your Intended Parents aren’t paying at that point, then they likely are going to charge you for their services.
Other attorneys may offer their legal services to you throughout your journey all for the single payment made by your Intended Parents. In those instances, they would be willing to help you with any questions you have now in reviewing the contract, or in the future if there are enforcement issues, payment issues, or contract obligation disputes after the contract has been signed. But, even those attorneys will most likely refer you to someone else, or charge for additional time, if you decide to pursue more formal dispute resolution options under the contract. This means if you want to pursue a breach of contract claim for damages against your Intended Parents (or other professional) using mediation, arbitration, or litigation, that would be either a separate service agreement or they would refer you to another attorney to handle that for you.
What about during the parental establishment process?
In the middle of your pregnancy, the Intended Parents’ attorney (usually) will be putting together a series of documents that establish the Intended Parents’ legal rights to their child. We sometimes call this a Pre-Birth Order or Post-Birth Order, and which one you use will depend on the state where you are going to deliver (some states do everything administratively through Vital Records rather than with a court proceeding). During this phase, regardless of which state you are in, you will likely have documents to sign or court hearings to attend. While it is not always required that you have an attorney at this stage (many states do not make that mandatory), it is always a good idea to consult with one in your state just to make sure you know what you are being asked to sign or say, and why.
Attorneys working with Surrogates at this stage of the legal process to review the court documents normally charge minimal flat fees, and those should be covered by your Intended Parents. So, even if you are told that you don’t “need” an attorney to work with you, that doesn’t mean you can’t ask for one to do so. If that is your preference (and it probably should be), then let your agency (or IPs if doing an independent journey) know that you want to talk with an attorney before signing those court documents. Ultimately, having an attorney work with you helps protect your interests, and it legitimizes the entire process if you are not being asked to represent yourself during the parentage phase.
Conclusion
There are a lot of amazing attorneys in this industry. You want to find one that is both really good at what they do, and really good at explaining the important aspects of your legal documents to you. This is especially true if you are going to be on your own after the contract is signed. Ideally, you can find one that you will be able to go back to and ask questions during your journey as well.
Your attorney should be YOUR advocate and the person in your corner when you need help. So, choose someone you think will take care of you throughout your entire pregnancy. The Surrogate’s Corner would love to serve you and walk beside you throughout your surrogacy journey. Contact Us Today for more information and a no-cost consultation!
