by Naomi Cahn, Esq. and Heather Ross, Esq.
As you undertake your journey towards a child, it may become appropriate to seek legal advice. In this column, we want to give you tools to help you decide about various issues that are involved in working with an attorney.
Do you need an attorney?
An attorney can help you wade through any legal issues that may be involved in your fertility treatment. If you are participating in third party reproduction, i.e., using a gamete provider (egg, sperm or embryo) or working with a surrogate, you will likely need an attorney. Some state laws require representation by an attorney, and/or the fertility clinic or matching company you are working with may require attorney representation. The laws in this area vary by state, and even within each state, local practice is different. Whether or not an attorney is required by law or the fertility clinic/matching company, a lawyer’s involvement is vital to your third party reproductive arrangement as your lawyer will help you consider and document (in an agreement with your gamete provider or surrogate) what you would like to happen before, during, and after the donation or surrogacy procedure. An experienced attorney can help guide you through important aspects of any third party reproductive arrangement, including whether and when you would like future contact with your gamete provider or surrogate, confidentiality concerns, expense reimbursement, payment terms, disposition of embryos, necessary parentage provisions, insurance coverage, etc. Because there are so many issues to consider in any third party reproductive arrangement, the importance of obtaining legal representation cannot be underestimated.
How do you find an attorney?
You can find an attorney in many different ways. Often the fertility clinic will have referrals to attorneys who have worked with the clinic in the past and are experienced. If you are matched through an agency, the agency may provide referrals to lawyers whom the agency knows have expertise in this area. The AFA has a web-based tool that helps you find a local attorney. If you are a member of RESOLVE, your local chapter may have a list of referrals. And, if you have friends who have been through this process, they can provide recommendations based on personal experience. Finally, you can search the internet for websites of local attorneys as well as chat rooms and web forums with discussions and opinions of other intended parents and their experience with specific attorneys.
How do you find the right attorney for you?
You now have a list of potential attorneys. How do you narrow down that list? Here are a few of useful items to consider:
- Experience: You probably want to know how long they have practiced in the area of assisted reproductive technology? How many cases have they handled? Have they worked with your fertility clinic or your agency? Is their practice focused solely or mostly on third party reproduction?
- Background: In which states are they licensed? For example, you may be using a surrogate who lives in a different state, and an agency located in a third state. Your attorney is often not licensed in all three states, but you need to ensure that your attorney is familiar with the laws of the different states and/or can work with attorneys in those states, if necessary. To which professional organizations do they belong? Are they members of organizations that specialize in reproductive technology, such as the American Fertility Association, American Academy of Reproductive Technology Attorneys (AARTA), the American Bar Association’s Assisted Reproductive Technology Committee, or the American Society for Reproductive Medicine?
- Fee Structure: Find out how the attorney bills. Many attorneys charge a flat fee for surrogacy arrangements and for gamete donor contracts. If your attorney is billing by the hour, you want to make sure to discuss the hourly billing rate and whether there is a predictable number of hours the matter should take, or whether limitations or caps exist if and when unforeseen circumstances arise.
- The relationship itself. You will be working closely with your attorney, so finding someone with whom you feel comfortable is important. Is the attorney readily available to answer your questions or concerns – do you want to work with any attorney who will ‘hold your hand’ through the process, or who will maintain more of a distant/business relationship? Does the attorney prefer email or phone calls? Will the attorney meet with you in person or does he/she only provide teleconference or email communication? Does the attorney require face-to-face meetings even if you prefer electronic means of communication? When is the attorney available? Does he/she offer evening or weekend hours? Most importantly, you want an attorney whom you can trust, who will be candid with you not only about the law, but also about his/her thoughts on what is or is not appropriate for your reproductive arrangement.
What can you expect your attorney to do for you? Your attorney should be able to advise you as to any laws relevant to your reproductive arrangement and what you need to do to comply with those laws. He/she should be able to draft, review and negotiate the appropriate documents for the reproductive arrangement as well as any necessary parentage proceeding. In addition, because there may be no law or the law may not be entirely clear, your attorney should be able to guide you through the appropriate practical steps and advise you as to any risks of enforceability. Your attorney should provide you with advice on insurance coverage in your state, and how to maximize your chances of being covered by your policy. He/she should be able to answer questions concerning your consent forms with the fertility clinic. Your lawyer should also have appropriate referral contacts. He/she should be able to refer you to escrow agents, gamete and surrogacy matching companies, mental health professionals, excess insurance providers, estate planning attorneys, and other important support personnel.
Heather Ross is a member of the The American Fertility Association’s Legal Advisory Council and has been practicing law for 19 years at the law firm she founded, Ross & Zuckerman, LLP after her own struggles with fertility.
Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School and the John Theodore Fey Research Professor of Law at George Washington University Law School. She has written numerous law review articles on family law, feminist jurisprudence,
and other subjects, and has co-authored several books.