Why Do You Need a Lawyer, Anyway?
by Naomi Cahn
Posted on April 13, 2015
Why Do You Need a Lawyer, Anyways?
As you travel through your journey towards parenthood, talking to a lawyer may not be at the top of your list - medical professionals, your insurance company, a support group - but attorneys? Yet, particularly when you are using donated eggs, sperm or embryos, surrogacy, or are not married, an attorney may be important, if not downright necessary. Even married couples using in vitro fertilization and their own gametes may want to clarify their rights, with respect to any unused embryos if one parent dies or the couple is divorced.
Third Party Reproduction
When it comes to third party reproduction, state laws vary on donor rights. Most state laws do not address egg donation. Although the intended parent's names may be placed on the original birth certificate (even if the law is silent with respect to the donation), it is important to involve an attorney to understand the legal risks and to determine if there are special requirements or further agreements the parties may need to consider. An attorney can help guide an intending parent through a state's laws. When there is a known donor (rather than an anonymous one), a lawyer can help clarify everyone's rights going forward, ensuring no confusion.
For one perspective on this process, the just-published memoir, "Love's Promises: How Formal and Informal Contracts Shape All Kinds of Families," by Martha Ertman (2015) describes some of the various arrangements possible.
When it comes to surrogacy, attorneys will be familiar with the varying laws of different states, ensuring, for example, that surrogacy is legal in the state in which you are pursuing it and that the fees or expenses paid to the surrogate are permissible. State laws (such as California and Illinois) may explicitly require that both the intending parents and the surrogate be represented by attorneys.
There are an increasing number of divorce cases involving disputes over extra embryos that one party may want to use, and the other may want to destroy. In fact, that is even a critical part of the plot of a Jodi Picoult book, "Sing You Home" (2011).
While fertility clinics have their own forms to address this contingency, the intending parents may want a separate, distinct agreement that sets out their rights. And this may also be an issue to be addressed in estate planning. If, for example, one spouse uses a deceased spouse's frozen sperm, then the rights to inheritance of any resulting child are controlled by a combination of laws and private ordering in contracts and wills.
What Type of Attorney Should You Hire?
There are numerous ways to find an attorney, ranging from fertility agency referrals to the Path2Parenthood website. You'll want an attorney who is licensed to practice in your state and who is accustomed to representing clients in the fertility process.
An attorney should be able to provide advice to you about the entire process, going beyond the basic legal issues and helping you think through what might happen in the future and your interactions with a surrogate or agency.
An attorney should be able to prepare the relevant documents not only for the reproductive arrangement itself, but also for any necessary parentage proceeding. Your attorney will typically be able to provide you with advice on insurance coverage in your state, including tips on how to work with your insurance company to maximize the possibility of coverage.
Going beyond insurance, your lawyer should also have appropriate referral contacts for a variety of other types of support that can be useful: escrow agents, gamete and surrogacy matching companies, reproductive-focused attorneys in other states, mental health professionals, estate planning attorneys, and others. The attorney can also let you know of any risks based on a lack of clarity in the law.
You also want to be comfortable with the attorney's fee structure. The attorney may request a retainer, or down payment against which future costs will be billed.The attorney may bill by the hour, or may have a flat set fee up front for various services, such as finding a surrogate, drafting a contract, getting court approval of any arrangement or parenthood establishment when required by state law. You'll want to get a complete listing of all potential fees at the beginning of any legal representation.
Regardless of where your infertility journey leads you, your attorney can help you comply with any and all of the relevant laws.
Naomi Cahn is a member of Path2Parenthood's Legal Advisory Council and the Harold H. Greene Professor at George Washington University Law School. She is the author of numerous books and law review articles on gender and family law. With Wendy Kramer, she is the co-author of Finding Our Families: A First-of-its-Kind Book for Donor Conceived People and their Familiehttp://http://www.amazon.com/Finding-Families-First-Its-Kind-Donor-Conceived/dp/1583335269s. She and Professor June Carbone are the co-authors of RED FAMILIES V. BLUE FAMILIES (Oxford University Press 2010). Her book, TEST TUBE FAMILIES: WHY THE FERTILITY MARKETS NEED LEGAL REGULATION, was published in 2009 (NYU Press), and she is working on other books on donor-conceived families. She is a member of the Yale Cultural Cognition Project.