Section 10 of the Children’s Law Reform Act specifically requires that any surrogate and intended parent or parents each need to receive independent legal advice prior to entering into a surrogacy agreement.
“Independent legal advice” means that if the lawyer for the intended parents drafts a surrogacy agreement and an egg donor agreement, both the surrogate and the egg donor each need to go see a separate lawyer from a different firm for advice on the contract before signing it.
For example, where the intended parents are two gay men, they may be represented by one lawyer who will prepare an egg donor agreement and a surrogacy agreement, and the egg donor and surrogate will each need to consult separate lawyers about those draft contracts before they are finalized.
The time required can be frustrating. But given the important nature of the issues to be discussed, and the fact that the legislation requires it, it is time well spent.
Consulting with a lawyer should give everyone involved in a surrogacy or donation agreement time to consider the risks of what he or she is proposing to do, and the implications: legally, financially, and from a more personal perspective.
Lawyers who work on fertility matters will try to ensure that intended parents can meet their timing goals. Clients need to be aware that the legal process often takes a couple of months. Both the legislation and fertility clinics require that the legal agreements be completed before any embryos are transferred.
If you are considering expanding your family through surrogacy, becoming a surrogate, or becoming a sperm or egg donor, you need to ensure you have a lawyer familiar with the area of fertility law on your side.