Advocates and Ethics: Legal Representation in Surrogacy

by Madison Heggins

The importance of advocacy

When I first began working for Alcea, I had a basic understanding of what surrogacy entailed, but I was largely unaware of the many steps it requires in order for it to be done in an ethical way. The number of people involved in a single journey surprised me. From doctors to doulas to nutritionists and escrow agents—it seemed there was a part for everyone to play in every single facet, starting at the initial consultation to the delivery of the child and beyond. Even more, as I settled into the legal assistant role, I began to understand the importance of legal representation.

Now, anyone who goes to law school will most likely hear about the importance of advocacy. I myself heard it first in my legal writing class, where my professor, a long-established lawyer with a talent for one-liners and a skill for monologues, broached the subject.  It was another one of my virtual classes. My professor, iPad in his hands, his camera showing the tip of his nose and the glare of his glasses, summed it up quite simply. “You are all going to be lawyers,” he said. “And to be a lawyer you have to know how to advocate for your client. That’s what being a lawyer is. Being an advocate.”

It was funny. For all of my long-winded rants to friends about the importance of legal representation, the importance of people having access to lawyers who can break down the language of leasing agreements and even hospital bills, it never occurred to me to boil it down to that. One word. Advocacy. However, I realized that regardless of the simplicity of the word, it was true. Advocacy for clients is the most important facet of law. It is not legalese or hollering objections in a trial. It is simply acting in the best interests of your client. It is simply advocating on their behalf. And surrogacy is no different.

What makes a surrogacy process ethical?

Ethical surrogacy relies on the protection of all parties involved in the journey. From the surrogate to the intended parent, all parties should be fully aware of what the process is and what every party is entitled to by way of protection and rights. This means understanding what they are signing when they are signing it, understanding the guidelines that color the compensation agreed upon, and understanding the specifics of their state laws. It also means that both sides need their own representation.

On the surrogate side, legal representation presents itself in a number of ways. In New York, under the Child-Parent Securities Act, the rights of the surrogate are clearly outlined. These rights would not only be communicated and adhered to by the surrogacy agency itself but will also be enforced by the surrogate’s own lawyer. In this way, the surrogate’s lawyer serves to protect the surrogate and all of their interests. From compensation to ensuring full understanding of the language and intention of their own contract to their rights as a surrogate, acquiring legal representation for a surrogate is and should be a top priority. For much of this area in family planning, agencies, and firms alike seem rather inaccessible to the everyday person. Not only does this mean that the language involved in surrogacy contracts can at times be inaccessible and complex, but it can also mean that this lack of understanding and relative blurred lines involved in this process can leave surrogates and intended parents alike feeling overwhelmed and vulnerable. This is where the importance of representation plays its part. Surrogate lawyers, as advocates, act as the middleman between confusing and complicated legal jargon and the surrogate who needs to understand their place in the process.

On the intended parent side, legal representation serves a similar purpose. For many intended parents, the road to family building has been paved with pain, disappointment, and a complex relationship with other traditional and alternative forms of family planning. This is especially true as it pertains to women of color. As Black and Brown women continue to deal with medical racism, silence about infertility, and a general lack of access to information about family building, legal representation serves to ensure transparency and a full understanding of what intended parents can expect in surrogacy. This might include specific information about state laws pertaining to surrogacy—including the procedural process for parental rights—or might even include a review of guidelines that inform confidentiality, compensation, or general expectation regarding the intended parents’ agency agreement. Beyond that, and like that of lawyers who advocate on behalf of surrogates, lawyers will also help intended parents to navigate the language of their contract. Whilst agencies do their best to be as transparent and detailed as possible, lawyers examine, analyze, and research the language in the necessary disclosures, agreements, and releases to ensure it is understood. Here, advocacy and transparency are closely linked and act as important factors especially in vulnerable areas such as family planning and third-party reproduction.

Separate representation matters

What matters most in these surrogacy arrangements is that each party has access to separate legal representation. Not only does this further protect the privacy of all parties and the transparency of their respective contracts, but separate legal representation also provides similar protection of the interests of the parties. This is also why legal representation should come in the form of an attorney outside of the agency. Surely, there will be attorneys familiar with third-party reproduction that agencies may recommend, perhaps these are even attorneys that have worked with a number of clients within the agency; however, these attorneys should still be outside of the agency. If legal representation is about advocacy, then the attorneys involved in surrogacy agreements need to be primarily concerned with the interests of their client, whether that be in securing the healthiest and safest journey for the surrogate or in doing the same for the intended parents. Ethical agencies ensure that their interests are not at the forefront of the surrogate or intended parents’ minds.

This factor—the separation of agency and legal representation on all sides—is one of the most important aspects to retain the integrity, ethics, and trust of surrogacy arrangements. While surrogacy laws change state by state, and the procedures that color important considerations like parental rights, surrogate rights, and compensation standards also change, surrogacy lawyers ensure that all parties, Alcea included, retain a strict adherence to these laws. They consider liabilities and complications and are willing to have the conversations the other parties may find difficult. This is not a role to be taken lightly, and it is not a role that can be fulfilled by one lawyer on both sides of the contract. This separation may require a lot of correspondence or negotiation, but ultimately, it provides both sides with the reassurance needed that no one is being taken advantage of.

Surrogacy has come an incredibly long way. It can be tracked throughout history, with some failed arrangements, some uncompensated, and some that changed the legal map of family planning forever.  However, the long and winding road of surrogacy, and the peaks and pitfalls that it has encountered, have ensured that necessary protection for both surrogates and intended parents should always be a priority. Surrogacy requires a level of transparency from the agency, the law firms involved, and all parties signing the agreement. This level of transparency can only come in the form of legal representation that adequately protects the interests of everyone involved and the nature of surrogacy itself. Third-party reproduction is about creating families, and it requires the help of special surrogates, hopeful intended parents, ethical agencies, and lawyers, the advocates, who support them all.

Contact the Alcea team to learn more about becoming a surrogate or becoming a parent through surrogacy.