Retaining an Attorney

Retaining an Attorney

What do I need to know about Reproductive Attorneys and why should I retain one?

Doctors and nurses and clinical admins, lab professionals, mental health pros, a donor, a surrogate…and some folks only require a party of two to make a family! By the time ART patients reach collaborative reproduction as a family building option, the list of professionals with whom he/she/they engage is ever growing and a new player comes into consideration, the reproductive attorney.


What is a Reproductive Attorney?

Sometimes referred to as an ARTs Law Attorney or an Alternative Family Formation Attorney, Reproductive Attorneys are legal professionals specializing in the area of clinically assisted family building. Reproductive Attorneys can assist prospective parents in donor selection, surrogate or gestational carrier identification, drafting and negotiating those contracts between the parents and the parties with whom they are engaged for either gametes and/or carrying a pregnancy as well as review of other legal documents that may be involved in their family building efforts, such as agency service contracts and clinical consents. Sometimes, particularly in matters involving surrogacy, a Reproductive Attorney will also assist with adoption proceedings and, in the same regard, attorneys whose practice is primarily adoption oriented may be able to assist with certain third-party reproduction matters.


Why Do I Need a Reproductive Attorney?

If you are anticipating family building with donor gametes (egg, sperm or embryo) and/or you are relying on the services of a gestational carrier or a surrogacy you will enter into legally binding contracts addressing, most importantly, the parties’ intentions with respect to parentage as well as expectations of rights, responsibilities and obligations owed and expected of each other. Parentage is a particularly complex judicial matter and it is imperative that the parties involved in collaborative reproduction, document and capture their respective intentions. Donor and surrogates will clearly state their desire to be recognized only as that, a donor and/or a surrogate, and any other presumption or right of presumption of parentage will be explicitly and clearly relinquished.

Other matters that will also be negotiated and then documented by each party’s attorney may include matters of payment, breach, anonymity, future contact as well as control and disposition of excess embryos.

If prospective parents are applying for insurance coverage for clinical expenses, if coverage should be declined, reproductive attorneys may also be able to provide counsel and services related to appealing insurance denials.


When do I need to retain an attorney?

It is a good idea to begin considering whom prospective parents will retain for legal services at that time when they have decided to pursue collaborative family building. Your clinic and/or your agency should be able to recommend attorneys. The American Fertility Association and RESOLVE: The National Infertility Association both have lists of reproductive attorneys available at their websites. The American Bar Association’s Assisted Reproductive Law Section has resources available, as well. It is best, as with most matters, to work with someone who comes to you recommended.


Is it expensive to retain a reproductive attorney?

Collaborative reproduction is an expensive endeavor. While fees for legal services vary both regionally as well as with respect the degree of services required, prospective parents will find that fees for donor contracts, for example, are less than they expect and even the more costly surrogacy contracts are viewed by parents as reasonable expenses relative to the level of protection and security these documents provide for their family.

It is standard practice that prospective parents will also pay for the donor’s and/or the surrogate’s legal representation.


Will my attorney be in touch with my agency, my clinic?

The most successful family formation efforts will require collaboration and good communication between the team of professionals they have engaged. If the parents are working with an agency, a cycle coordinator will be assigned and she will direct all communications and keep all of the professionals informed of your cycle status. If parents are not working with an agency, the parents’ attorney will be in contact with the donor’s and/or the surrogate’s attorney as well as the clinic.


Originally prepared by Amy Demma, Esq for Fertility Ties.

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