Should Gestational Surrogates Always Have a Lawyer?

Victoria Ferrara


Vicki Ferrara's Blog for Worldwide Surrogacy Specialists, LLC   

This past week I attended the Annual Conference of the American Academy of Assisted Reproduction Technology Attorneys  (AAARTA) in New Orleans. The sessions and social gatherings were a synergistic experience with lawyers from all over the country discussing matters of family formation and the law. In fact, AAARTA is division of the American Academy of Adoption Attorneys. The combined group is an amazing organization of attorneys dedicated to the formation of families through adoption, assisted reproduction such as egg donation and IVF, and surrogacy. At the sessions for AAARTA we discussed many ethical issues that lawyers face. One question arose as to whether or not a surrogate or gestational carrier should ALWAYS have a lawyer. Some would think that an adult person can waive being represented by a lawyer, and say, "Hey I know what the contract says, I am fine with it, I don't need a lawyer."

But my position is that a gestational carrier (surrogate) should always have a lawyer and this legal representation should be mandatory. Why? Well, first of all, surrogacy is a controversial area of family formation. For those of us who do this legal work and consultation such as we do at Worlwide Surrogacy, it is not controversial because we are practicing law in States that have laws and procedures that make surrogacy legal and very possible. However, there are States in the U.S.A. that prohibit surrogacy such as New York and Michigan, and others, not to mention the severe taboos that still exist in Europe and other parts of the World. What are the reasons that surrogacy is prohibited in these jurisdictions? One main reason that comes up all the time is that surrogacy involves the exploitation of women, ie, that women will give of themselves and their physical bodies and well-being just so some other couple can have a baby, and they may well be taken advantage of because of the not-so-cool aspect of surrogacy in which there is a profit motive. The industry, in some parts of the world, may actually compensate women very little, and may take advantage of them, in order to make money from people who are vulnerable and desperate to have a baby. I can understand that this could happen in third world countries, and I can understand how. It might even happen in unsupervised conditions in the U.S.A. But this is the reason I feel surrogates must have lawyers. It is obviously one major protection so that she is legally looked after and legally advised, and not taken advantage of by the people making the money or paying the money. This is also why AAARTA is such an important organization for the area of assisted reproduction law.

If the lawyers are gathering to discuss best practices, ethics  and guidelines for doing this family formation work, then we are moving in the right direction to help everyone who participates in such arrangements such as gestational surrogacy to either have their children, or help someone have their children.

As for the Conference, there were numerous well known lawyers at the conference. And the conference was fun (imagine, a conference full of lawyers!) Just kidding. I am a lawyer and I play in a rock band. I will just mention some of my friends and acquaintances who were there: Kurt Hughes from Burlington, VT was there, Amy Demma from Massachusetts and New York, Denese Seidelman and Nina Rumboldt from Bronxville, New York, Melissa Brisman from New Jersey, Kathy DeLisle from Massachusetts and about 400 others. We actually had a New Orleans-style parade led by a brass band and we marched from the JW Marriott to the Jax Brewery. I went into some really cool art galleries, and then the 25th Anniversary Gala was held at the World War II Museum, ranked the 7th most interesting museum in the country.

Thank you AARTA and AAAA for a great conference in New Orleans. 

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