As a surrogacy lawyer, I’ve come across a few people who found a surrogacy contract on the internet, or who re-worked the surrogacy agreement that their surrogate used in a previous surrogacy. They decided that DIY was the way to go, and created their own paper. The main incentive was to save some funds, but cutting corners has its consequences and can, in some circumstances, result in higher costs when something goes wrong.
Am I a fan of the DIY surrogacy agreement? In a word — no. Here are my top five reasons why intended parents need a surrogacy lawyer.
1. You Need A Surrogacy Expert
There are several benefits of having your own surrogacy lawyer, but one of the most important revolves around education. A good lawyer will educate you about gestational surrogacy, surrogacy laws in Canada and about surrogacy generally. How do you know what you can do or what you can’t do legally unless you sit down with an expert? Please don’t rely on an IVF physician or on the surrogate herself to answer your questions or interpret the law. Some intended parents may have a friend who has gone through surrogacy themselves, but that one experience does not make them an expert. Every intended parent needs to have an expert on the team.
2. Your perspective may be compromised
Ask any professional in the industry and they will tell that it is a universal phenomenon that intended parents fall in love with their surrogates at the beginning of the journey. Most surrogates are truly lovely women, but not all surrogates deserve that trust and love. If you’ve been looking for a surrogate for a long time, you may be willing to overlook things that an experienced surrogacy lawyer knows may become problematic later on. If you don’t work in the area, you can’t possibly know as much as the professionals who see hundreds of cases each and every year. You know that adage about an ounce of prevention? It’s true.
3. The contract has likely been modified
It can be quite educational to read a surrogacy agreement that you get online or from a friend. However, if you choose to use that agreement as your own template, you are literally flying blind. I have eight different templates that I use to get started and I can tell you that a contract that was drafted for a couple working with their own gametes is going to look different than a contract drafted for a couple who are using an egg donor. If you start with a contract that isn’t meant for your situation, it is very hard to adapt perfectly. You don’t know what was eliminated from the first draft, or which clauses should have been added but weren’t.
4. Most online templates are American
If you find a draft surrogacy agreement online, it is likely from an American jurisdiction where the laws are very different. Remember that if you are successful, the contract will form part of the package that is submitted to the judge as part of the post-birth process. Do you want to be those intended parents standing in front of a judge, making an application based on a contract that has provisions that are clearly outside of Canadian law?
5. Let someone else be the bad guy
Once you find your surrogate, you should be focussed on building a positive relationship. You need to set patterns of communication, and ensure mutual trust and respect. However, there will be difficult issues that need to be discussed and you may wish to take a hard line on some of the issues that are particularly important to you. Wouldn’t it be nice to have a buffer on those issues? Let someone else draft the provisions about terminating the pregnancy and let the lawyers come to a mutually acceptable agreement on how to approach the tough stuff. That lets you focus on the positive, while the difficult work is being accomplished without damaging all the good work you have accomplished.
Surrogacy takes a year out of your life. It’s important to assemble a great team around you, and an experienced surrogacy lawyer deserves a spot on that team.
