This principle of independent legal representation is actually true for all legal matters when people enter into legal contracts or when they are asking the courts for orders and judgments such as pre-birth orders of legal parentage. When intended parents and surrogates make a gestational surrogacy contract, they are making promises to each other. Each party is taking on obligations and each party has rights under the contract. It is important that each “side” or “party” to the contract has his or her own legal counsel to obtain clear and unbiased explanations of the rights and obligations contained in the agreement.
Even when people agree on everything, it is still important to be represented by by separate attorneys because, in case there is a contractual question or disagreement during the surrogacy journey, everyone must be able to go to their lawyers to ask for clarification.
Most importantly, having independent legal counsel for each party to the contract provides assurance that the contract will be enforceable in court if a court is ever asked to weigh in. Even in the scenario where there is no disagreement and everyone is abiding by their obligations, courts may be asked to validate the contract in order to issue the pre-birth order of legal parentage for the intended parents. The courts will most likely only validate the contract if the intended parents and the surrogate had separate, independent legal counsel when they entered into the contract.
Therefore the need for independent representation in surrogacy arrangement is key to ensuring the most secure and ethical process for everyone. The ethics of surrogacy are clearly important in order to ensure a safe and positive surrogacy experience for all involved. Hence the requirement that intended parents and surrogates have separate attorneys for their surrogacy legal matters is part of the ethical guidelines and recommendations for gestational surrogacy in the United States, as promulgated by the American Society for Reproductive Medicine (ASRM) as well as other prominent surrogacy organizations such as Men Having Babies, the Academy of Adoption and Assisted Reproduction Attorneys (AAAA), and the Family Law Group of the American Bar Association.