Assisted Reproductive Technologies

Surrogacy Agreement

In order to fully appreciate the complexities and challenges of representing intended parents pursuing collaborative reproduction by way of ART, it is essential to identify certain basic terms of the contractual relationships underlying the process and confronting the parties and counsel.

The following common provisions should be found in a well-drafted donor/surrogacy agreement: 1) a requirement that some or all of the parties undergo genetic, medical, criminal and psychological screening and background checks, with the results being made accessible to all parties; 2) a requirement that the surrogate and/or donor be represented by his/her own independent counsel at the intended parents' expense; 3) a requirement that the intended parents set aside a sum of money in escrow managed for the benefit of the surrogate/donor and also obtain a term life insurance policy for the benefit of the surrogate; 4) a statement of mutual intent regarding highly personal and sensitive issues, including “selective reduction,” (where an embryo or fetus can be aborted, usually for medical reasons) and termination of the pregnancy; and 5) a statement of mutual intent regarding the surrogate's/donor's relinquishment of future parental rights and obligations and the intended parents' assumption of those rights and obligations.

Consideration of the professionals, specialists and laypeople whose interests intersect due to these provisions, and by the medical procedures underlying them, reveals the breadth and complexity of the potential conflicts at play, to wit: doctors, specialty pharmacists, embryologists, etc., involved in the assisted reproductive technology cycles themselves; surrogate agencies and storage banks that broker third-party relationships between the intended parents, on the one hand, and the donors and/or surrogates, on the other; mental health professionals who perform psychological screening and home studies of the participants; attorneys who draft, review and monitor compliance with the contract; escrow agents who manage disbursement of payments to the third party pursuant to the contract; and, of course, the third-party participant (donor or surrogate), and his or her own spouse and/or children, if any.

Identifying the many intertwining medical, legal and ethical issues implicated by this labyrinth of parties and interests is more than an issue-spotting exercise, and a comprehensive list of those issues is well beyond the scope of this article. At a very minimum, the following should be addressed.

First, consider the potential conflicts of interest between intended parents on the one hand, and the surrogate and/or donor(s) on the other hand. The relationship between intended parents and a donor or surrogate is a joint undertaking characterized by trust and confidence, much like as with other commercial contracts. However, areas in which the parties' individual interests may not align (e.g.: 1) amount of compensation to the third party; 2) assumed versus unassumed risks on the part of the intended parents ' for example, the surrogate's lost wages or child-care for her own children; 3) termination of a pregnancy that threatens the physical well-being of the surrogate; 4) anonymity of a donor or future contact with the child, etc.) render surrogacy/donor agreements more of a mutual leap of faith than a business transaction, given the high degree of risk of loss and injury, and the invasion of privacy and confidences that characterize the relationship.

One current illustration of the issues and litigation that can arise in the context of a third-party reproduction arrangement is the headline-making legal battle that took place earlier this year between Melissa Kay Cook, a California surrogate carrying triplets, and the intended father with whom she contracted. According to news reports, Cook and the intended father were matched by a surrogacy agency in California, of which the intended father was a client. The contract contemplated embryos being created using anonymously donated eggs fertilized with the intended father's sperm, and then being transferred to Cook. The contract further contemplated that Cook would not have any parental rights to any child or children born as a result of the procedure. Cook was represented by her own attorney, paid for by the intended father, who reviewed the contract after the intended father's attorney drafted it.

The dispute arose when the intended father asked Cook to selectively reduce one of the fetuses because he was concerned that he could not financially afford to support three children or pay the medical costs associated with the high-risk pregnancy. Cook refused. After the babies were born, Cook filed an action against the father, seeking custody of the three children. The California court hearing the case concluded that the intended father is the sole and exclusive legal parent of the babies and that Cook has no legal parentage rights as to them. O'Reilly, Katie, “When Parents and Surrogates Disagree on Abortion,” The Atlantic, Feb. 18, 2016.

A second category of complexities concerns the ethical issues created by the special and unique nature of the relationship between the contracting parties in the context of third-party reproduction ' i.e., what, if any, heightened duty of care on the part of the lawyer flows from the special nature of the legal relationships to the intended parents, to the surrogate and/or donor and to the unborn intended child? What private and confidential information can be disclosed without waiving privilege or abandoning a duty of undivided loyalty to the clients? What information is required to be disclosed from an ethical standpoint?

Is the fact of the intended parents' payment of the surrogate or donor's legal fees for their independent counsel's review of the contract relevant to any of these considerations? What are the attorney's duties regarding confidentiality and privilege should a contested custody proceeding between the surrogate and the intended parent(s) or a divorce proceeding between the intended parents following a successful surrogacy procedure arise?

Third, what is the role of the attorney within the collaborative framework of the interdisciplinary “team” of necessary participating professionals who facilitate the third-party reproduction arrangement? For example, if the attorney who drafts the contract on behalf of the intended parents also monitors delivery of professional services to her clients and to the third party (by, for example, storage banks, ART physicians, mental health professionals who perform psychological screening of the parties, etc.), to what extent does that attorney assume potential liability for those services?

What otherwise private or privileged information about the parties to the contract can be shared with service providers? In other words, how should attorneys effectively collaborate with the other professionals who may be serving both parties to the contract while still protecting confidentiality and privilege and promoting ethical standards of loyalty?

Some of these very issues were addressed by the U.S. Court of Appeals for the Sixth Circuit in Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992). In Stiver, a surrogate sued the attorney who matched her with an intended father and who prepared the surrogacy agreement between them, alleging that the attorney was negligent in failing to properly screen the intended father for transmittable diseases. Judy Stiver had been artificially inseminated with the intended father's sperm and later delivered a baby boy who was born with an active infection leading to incurable conditions. Ultimately, it was learned that the baby was actually the biological child of Stiver's husband and not of the intended father (another “can of worms” altogether), but Stiver had been exposed to and contracted the infection (and passed it to the baby in utero) from the intended father's sperm.

The trial court granted summary judgment to the defendant attorney, finding an absence of any duty owed by him in the surrogacy arrangement. On appeal, the Sixth Circuit reversed and remanded for a jury trial on the issue of the attorney's negligence and the negligence of the other legal and medical professionals involved in the arrangement. The court found that the attorney, as the party in control of the medical and contractual arrangements, as well as the other professionals involved, had a “special relationship” within the context of negligence that gave rise to affirmative duties to reduce the risk of harm to the child, to the surrogate and to the intended father.

As the court observed, the group of collaborating professionals involved were “joint ventures engaged in an entirely new kind of project.” The court further recognized that the defendant attorney who had brokered the surrogacy relationship and prepared the contract “should not be allowed to wash his hands of responsibility by turning the project over to others, as the dissent argues. [He] exercised control, drafting the contracts, organizing the transactions between the parties and professionals, and monitoring the contract compliance. The parties entrusted themselves to [him] and his associates. The participants were led to rely on the broker/designer's direction and advice concerning procedure and professionals to trust.” 975 F.2d at 272.

Fourth, given traditional presumptions of parentage that flow from biological relationships with a child and the gestation of and giving birth to a child, and given the relative paucity of jurisprudence and lack of uniformity regarding legal parentage in the developing body of ART law, how can private parties contract so as to maximize their chances of having a court of competent jurisdiction enforce their manifested intent to declare legal parentage in the face of legal presumptions to the contrary?

The Collaborative Divorce Model

The upshot of this laundry list of potential problem spots is not to suggest that family law attorneys should avoid representation of clients pursing third-party reproduction, fraught with complications though such representation may be. It is instead to suggest that meticulous care should be taken to ensure that the inherent risks, conflicts and limitations are understood at the outset of any such engagement, and that the mutual intentions of the parties and legal uncertainties of ART law are clearly stated in the third-party contract. In other words, we may need to challenge and expand concepts underlying traditional rules of professional practices and codes of ethics so that informed consent on the part of all participants is paramount. The question is how to ensure that informed consent, and thereby adequately protect the parties to a third-party reproduction arrangement and the attorneys representing them?

In this regard, elements of the Collaborative Divorce Model are instructive. Much like in the representation of prospective parents in third-party reproduction arrangements, an interest-based and interdisciplinary model is also used in a Collaborative Law approach to divorce. The Collaborative Divorce Model is centered on non-adversarial negotiation and client empowerment, and often involves a comprehensive agreement at the outset of the representation ' a “participation agreement” ' among the lawyers and parties that provides for extensive participation by the parties, confidentiality, sharing of relevant information and the use of good-faith negotiation. It also uses a “Referral Model,” whereby associated professionals (in that context, financial planners, life coaches, mental health professionals and child mental health specialists) are retained by collaboratively trained lawyers on an as-needed basis.

Commentators in the collaborative law arena have queried whether a special rule should be adopted relating to the attorney-client privilege that communications or disclosures in that context to the other party or his/her counsel do not constitute waiver of the attorney-client privilege. Practitioners representing the surrogate or the intended parents in a third-party reproduction dynamic would be wise to consider similar “out-of-the-box” approaches. At a minimum, engagement letters should be specifically tailored and spell out the potential conflicts and limitations on confidentiality that typify the quasi-joint representation of intended parents and the third-party donor/surrogate. Attorneys may also wish to consider supplemental agreements, like those used in the collaborative divorce model, which extend the attorney-client privilege and address other issues raised by the particularized facts surrounding the people and circumstances involved.

In sum, the reality is that those who seek to become parents by way of third-party reproduction through ART invite what can feel like a cast of thousands into their (figurative) bedrooms, each with his or her own interests. Family law attorneys representing these parties should be mindful of this and think creatively about how to best protect all parties involved, while adhering to traditional obligations to clients. Just as third-party reproduction using ART challenges traditional notions of legal parentage, so too the practice of law in this field will have to adapt and evolve to keep pace with the miracles of modern science.

Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn. Alexis L. Cirel, an attorney with the firm, assisted in the preparation of this article, which also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.