Do I need Independent Legal Advice on My Fertility Agreement?
By Melissa Salfi, Family & Fertility Lawyer, Mediator, Collaborative Divorce Lawyer
ILA Protects All Parties
The lawyer for the intended parents has drafted the fertility agreement and recommends that the surrogate or donor obtain independent legal advice (ILA) from another lawyer. Leading up to this, you (the intended parents) may have already spent a significant sum of money at the fertility clinic and on your legal contract. You may be wondering how important this step really is and if you can save some money by skipping it. You have a great relationship with your donor(s)/surrogate, and they are in agreement with the terms of the contract and are ready to sign without meeting with a lawyer. So why complicate things by adding another step to an already expensive process?
Any fertility lawyer will tell you that it is extremely important that your donor(s)/surrogate obtain ILA. It not only protects them, but it protects the intended parents and safeguards your contract from challenge. Without ILA, your agreement is more likely to be found by a court to be non-binding and unenforceable and you risk having it set aside by a judge. The reason for this is that the court may not be able to determine that the donor(s)/surrogate understood what they were signing or that they signed the agreement voluntarily without undue pressure.
As a surrogate or donor(s), ILA gives you the opportunity to have the agreement and the law explained to you privately, and to ask questions without the intended parents being present. You will receive advice on whether the terms of the agreement are standard, and your fertility lawyer will review their compliance with the law and their implications. Your lawyer will ensure the contract is comprehensive and properly drafted, and that it aligns with your intentions and expectations. In some cases, important terms may be missing, or the language may not reflect your wishes. Your lawyer will make sure you understand and are comfortable with the contract, that your concerns are addressed, and that you are entering into this arrangement freely.
The ILA Process and How It Works
With respect to the process for ILA, you may be wondering what to expect.
Once the fertility lawyer for the intended parents has finished drafting the agreement, it will be sent to the lawyer retained by the donor(s)/surrogate who will review the contract and set up a meeting with their client to review it. During this meeting, which can take place on Zoom, the lawyer will go over the terms of the contract, explain the law, and discuss the rights and obligations of their client and implications of signing the agreement. The lawyer may recommend changes to specific terms, but ultimately the client can decide whether to seek them. The fertility lawyer’s main role is to ensure their client understands the terms of the contract, is comfortable with them, and is acting independently and of their own volition.
The lawyer will often inquire about why their client decided to act as a donor(s)/surrogate and how long they have known the intended parents for. For donors, there are many issues that come up during the meeting. The lawyer will, among other issues, discuss with the donor(s) any disclosure and confidentiality requirements, medical testing, the process for being reimbursed for expenses, any future relationship with the intended parents and child, the ownership, use and disposition of donated reproductive material, including what will happen to any excess gametes (sperm or ova) or embryos once the intended parents have finished building their family.
For surrogacy agreements, the lawyer will discuss with the surrogate many issues including, but not limited to the reimbursement of expenses, disclosure and confidentiality requirements, terms around maintaining a healthy pregnancy, medical testing, sharing of medical information with the intended parents, attendance at appointments and delivery, requirements for insurance, the legal process after birth, and unexpected scenarios including early termination and selective reduction.
The fertility lawyers at Crossroads Law can provide ILA on all types of fertility law agreements including for surrogacy, sperm donation, egg donation, and embryo donation. We will ensure that the agreement properly protects you and that you receive thorough and reliable legal advice. To view our current flat rates for ILA on fertility agreements, please click here and book your free consultation with a fertility lawyer today.