The Necessity for Legal Counsel in Surrogacy Arrangements

Family building through surrogacy is life-changing for the parties involved. While the journey is hopeful and exciting, it is also legally complex. One of the most critical steps in protecting all parties involved in the arrangement is working with an experienced fertility law attorney to draft, review, and negotiate the surrogacy agreement.

Each party to the negotiation, the intended parent(s) on one hand and their surrogate, including the surrogate’s spouse or partner, if applicable, on the other, should have their own independent legal representation. “Independent” refers to each party having their own attorney, separate from the other, and free from conflicts of interest. Independent legal counsel ensures that each party fully understands the agreement and has informed consent before entering into it. Independent legal counsel also ensures that no party feels pressured or disadvantaged and is entering into the agreement freely and voluntarily.

The Role of Legal Counsel in Surrogacy Arrangements
The parties’ legal counsel play a pivotal role in surrogacy arrangements. Their responsibilities include:

1. Ensures Compliance with State Laws: Surrogacy laws vary dramatically from state to state. Some states are surrogacy-friendly, while others restrict or prohibit certain arrangements. A fertility law attorney ensures the agreement complies with applicable state law and sets the stage for a valid parentage order.
2. Protects the Rights of All Parties: The intended parents’ attorney drafts the agreement and ensures their rights and obligations under the agreement are clearly defined. The surrogate’s attorney reviews the agreement and  ensures the surrogate’s rights, health, and well-being are respected and protected, and that her obligations are also clearly defined.
3. Negotiates: Once the agreement is drafted and reviewed, the attorneys negotiate the agreement on behalf of their clients. Several rounds of negotiation are common before an agreement is finalized.
4. Issues Legal Clearance to the Fertility Clinic: Most clinics require a letter of legal clearance from the attorney(s) before proceeding with an embryo transfer to a surrogate. Once the agreement is signed by all parties, a letter of legal clearance is sent to the clinic, informing the clinic that the parties may proceed with embryo transfer.
5. Obtains Parentage Orders: Once a pregnancy has been achieved, intended parents typically need a court order to establish legal parentage. Precisely what is needed and the timing depends on the state. In many states, a court order may be obtained pre-birth. Fertility law attorneys handle these proceedings to ensure the intended parents are legally recognized as the child’s parents from birth. Depending on the state, the surrogate may not need representation in this phase.

Select an Attorney Experienced in Fertility Law
Fertility law is a complex, specialized, and nuanced area of law. A surrogacy agreement is not a casual arrangement and selecting an attorney who has experience in drafting and reviewing these agreements is essential. The agreement will outline the rights, responsibilities, and expectations of both the intended parents and the surrogate. While this list is not exhaustive, agreements typically include:

• The surrogate’s compensation, reimbursement of expenses, and other fees
• Identification of medical providers, including the fertility physician/clinic, the obstetrician and delivery hospital
• Medical decision-making authority
• Health insurance coverage and financial responsibilities of the parties
• Life insurance coverage for the surrogate
• Parental rights and legal parentage
• Guidelines regarding contact and communication during and after pregnancy
• Travel restrictions for the surrogate

Without proper drafting by an experienced fertility law attorney, agreements can be unclear, unenforceable, or leave critical issues unaddressed. A well-drafted surrogacy agreement reduces the risk of misunderstandings by clearly outlining what each party can expect. It also establishes procedures for addressing unexpected situations, such as medical complications or disagreements about care.

What Are the Risks of Proceeding Without Legal Counsel?
Proceeding without an experienced fertility law attorney, and/or without an attorney representing the surrogate and her spouse or partner, if applicable, can lead to:

• Agreements that are unenforceable in court
• Disputes over medical decisions or compensation
• Delays in establishing legal parentage
• Financial or emotional strain if complications arise

These risks underscore why experienced legal guidance is not just beneficial, it is necessary. 

Surrogacy is both a deeply personal journey and a complex legal process. A fertility law attorney ensures that the surrogacy agreement is comprehensive, enforceable, and protective of everyone’s rights. By securing proper legal representation, intended parents and surrogates alike can move forward with confidence, knowing intended parents’ path to parenthood is built on a strong legal foundation.