Surrogacy Is a Podcast
Surrogacy Is a Podcast
Maya Shulman on Surrogacy Contracts and Legal Preparation
Ever wondered what lies behind the legal doors of surrogacy? Maya Shulman, Family Law Attorney and Founder of Shulman Law Group shares her extensive expertise, guiding us through the crucial steps and common challenges prospective parents and surrogates face. Learn about the importance of a positive mindset, the necessity of surrogacy specialized legal advice, and the continuous education required to navigate this complex field.
Discover the emotional and psychological hurdles in the surrogacy process and learn why a solid support system is indispensable. Maya notes the critical need for clear and comprehensive surrogacy contracts, addressing key considerations like marital status, insurance, estate planning, and contingency plans.
Prepare to feel like you’ll be making more informed decisions come the legal stage with Maya’s guidance on choosing the right surrogacy lawyer. Explore the varied legal landscapes across states and understand the significance of open communication and thorough background checks. Maya also delves into the complexities of escrow services, advocating for independent third-party management to maintain fairness and trust. This episode is a treasure trove of legal knowledge designed to help you navigate the surrogacy process with confidence and clarity!
Learn about..
Surrogacy contracts
Common legal challenges
Emotional hurdles
Improving support & guidance
Ensuring trust & communication
The role of attorneys in surrogacy & escrow
And the legal landscapes across states
💜 Take our short 8-minute quiz to see if you qualify and change someone's life forever. https://surrogacy.is/life-changing-quiz/
💜 After you qualify, make sure to schedule a call with us so we can get you to the next steps in the process. We are all surrogates here, by the way, so we can answer any and all of your questions.
💜 Check out the requirements to become a surrogate: https://surrogacy.is/requirements/
💜 Learn more about the compensation & benefits: https://surrogacy.is/compensation/
💜 Surrogacy in the US: https://surrogacy.is/become-a-surrogate/
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Guess what? What? My internet has been amazing all day long. Oh my God, how did you do it? What changed? I mean, I got a fancy purple cord that Alex sent me, and I'm assuming it's probably powerful and allows the internet just to flow in, and so our podcasts are so freaking awesome now.
Speaker 2:Well, I was excited that, yeah, that you got finally upgraded your internet after lots of laggy issues, I believe face freezing not cool. No, no, I know it never freezes on a good look. It's always like, okay, yeah, wow, those are all the chins I could possibly have.
Speaker 1:Oh, chin, chin, go away. Actually, one of the podcasts. If you are an active listener of what we do, Alex did a beautiful job of like low power in one of them, but really what he meant to say was internet sucks on Casey's end and we were trying to work with it.
Speaker 3:Tried to talk to Casey and she was like Casey's end and we were trying to work with it.
Speaker 1:Tried to talk to Casey and she was like Can you tell it's Friday today? This is what we get on a Friday on a podcast. So maybe we should do this more often. On a.
Speaker 2:Friday. Yes, I love it. I love every opportunity to see your face.
Speaker 1:So yeah, and we're going to be bringing Maya on yes. And she is going to teach us all things legal.
Speaker 2:Yes, in California specifically. So I am excited to pick her brain on some topics that are little things, that I've noticed some kind of nuanced differences between attorneys in regard to whether or not attorneys should hold escrow, whether or not surrogates and intended parents should communicate during the legal drafting process, because I know a lot of agencies recommend not and some do, and I'm on the fence about what we should even recommend and do as an agency, and so I'm really excited to pick our brain on that and get some insight, because I think it's important for people to talk to each other.
Speaker 1:But what do I want and let the professionals tell us what they think, because I think that's the other side of it is. I am not a tax advisor, nor licensed in insurance or an attorney, and I want them to be giving that advice. So I'm glad to have her on and hear her perspective.
Speaker 2:Yeah, also. She's just really sweet and fun and has such an interesting background, so I'm excited to bring her on again. I know we got to talk to her a little bit when we had the whole kerfuffle over the Alabama ridiculous ruling, so it's fun to be able to bring her back. So let's bring her in, okay, well, welcome back to. Surrogacy is a Podcast. Today we are joined by Maya Shulman, and I would love for you to go ahead and introduce yourself and just tell our listeners a little bit about who you are and your background.
Speaker 4:Good, morning, ladies, nice to see you as well. You're looking beautifully and it's Friday and it's been a long week and it's been a long year. Already. We're only in month four. God knows what happens next, right, but we have to be positive, and the reason we want to be positive is because the positive outlook makes everything better and it makes surrogacy better and it makes prospective parents and the surrogates feel better. So positive outlook on life is number one for everybody, especially if you go through a family building exercise. That's a very difficult process.
Speaker 4:The reason I'm saying this is because I have been doing this on the legal side of things for many years now and I have a medical background as well. I speak the language, so it was easier for me to jump into surrogacy and start educating people on what surrogacy is and what it is about and what it involves. So I'm a family law attorney with a subspecialty in adoptions and surrogacy. Not all family attorneys do that, because it's a niche. And because it's a niche, it requires additional education, initial expertise and additional experience, and I have that and I'm sharing this. The reason I'm guesting with you, ladies, is, first of all, I don't think I thanked you for inviting me back, but, thank you, I'm glad to be back. I like educating people because there's still, to this day, in 2024, lack of information, and we know that information is the maker of success and when you don't have information, you don't know which way you're going. So I like educating people. I like doing lectures. I present mles, mandatory continuing education classes, and I do that because, again, we need to let people know what is out there and what's available. So that's one of the reasons I do this.
Speaker 4:But going back to what I am is I'm an attorney and I do specialize in surrogacy and adoption as well, in surrogacy and adoption as well. I've been doing this for almost 25 years. I'm licensed in two states. I'm licensed in California and Massachusetts and we know that our licenses are state-specific. We don't get to be licensed in the United States, we get to be licensed in a specific jurisdiction. So I can't give legal advice anywhere outside of California and Massachusetts. I can give you a general idea of what things are and should be and, of course, I do have colleagues in all other states and territories, and it's important because we talk to each other. We don't know everything. Contrary to the popular belief, we don't. It's important for lawyers and agencies to understand and acknowledge. We don't know everything and that's what I tell my clients and I identify issues I don't know. I tell them who to speak to, because I will be doing you a disservice if I speak on topics I'm not familiar with. That's who I am and that's what I do.
Speaker 1:Thank you so much for sharing that. I'm curious when you're talking with intended parents, what are common challenges and items issues that you feel intended parents face when they're starting this process of the legal legality of starting parentage?
Speaker 4:There's a number of those difficulties actually. The first one is I will start with you have to pick your team, and that includes picking the right attorney. As I've indicated before, it has to be an attorney who speaks surrogacy language. Okay, that's number one, because unfortunately and I've encountered it with the phone calls that come to me there's a misconception that surrogacy is just checking the boxes on the form, and that is just a bad idea. That is a bad approach. You have to know this industry, otherwise you can't advise people. So that's a big one and that's number one.
Speaker 4:You then have to make sure that you have an attorney in the jurisdiction you want to go through surrogacy process, because and this has been a very public issue especially lately some jurisdictions, some states are just not surrogacy friendly and people have traveled and crossed state borders to be in the state that is friendlier for surrogacy. That's number two, and that's a big one as well. Number three if intended parents are working with agencies, they have to again choose an agency and they have to choose it carefully, and we'll talk about agencies later down today in the podcast. There are also issues with that. Intended parents also don't realize how difficult the process is Psychologically taxing, emotionally taxing. They have to have support, they have to have their team of people who will cheer them on, not just lawyers, not just agencies, not just accountants. They have to have their team, they have to have their village.
Speaker 2:So those are big ones and I could talk about them separately for a long, long time, but that's just identify where we are, I think, when intended parents are entering into I think there's so many different milestones along the journey before they get to the point where they're in legal and they're ready to draft contracts.
Speaker 2:And everyone's so excited at that point because that means you've identified a surrogate and she's medically cleared by your doctor and you're ready to go, get started and get the ball rolling. And I know there's a lot of times a lot of hangups that happen in legal in the drafting stage for parents when they start thinking about all of these big questions that maybe they hadn't thought about, that go into that contract because it's a big contract. It's not like a five page contract, right, it's usually anywhere between I've seen 25 to 60 pages of information. What are some of the things that go into that contract that you see parents being surprised by? That they don't know, like I don't even know where to begin with, or what are some of the things that challenge them that they should think about before they get to that stage.
Speaker 4:If I can just take it one step back, because you know lawyers are very particular about how we do things right. So the step back is the contract has to be done before fertility treatments have begun.
Speaker 4:Okay so that's number one. Before you talk about freezing the eggs or freezing the sperm or freezing embryos, contracts have to be done first. Why? Because it's important for all parties to that contract, for all parties to that surrogacy procedure, to have their expectations be identified and that's when we go into the contract. That will segue us into the contract. So the expectations are are the intended parents married? Is that a single person? Is that a same-sex person? That's where you start, because that is going to have different provisions for the contract. That's number one. Number two contracts, surrogacy contracts, are just that their contracts.
Speaker 4:So we have to fall back on law school 101, first year of law school. What are contracts? Contractual law contracts have to be identified. They have to be specific, there has to be consideration and there has to be the legal term for it is the meeting of the minds. All parties to the contract have to know exactly what they're signing. They, the contract, has to be specific. It cannot be ambiguous, because that's when it ends up in court. Okay, it has to be clear and it has to be signed by everybody and the terms have to be such simplistically identified that a non-legal person can understand it. And that's a challenge.
Speaker 4:I have seen lawyers who write contracts where even I, when I read them, I have to think and stop. What does this mean? What does it say? Why is it so difficult?
Speaker 4:First year of law school, they have taught us one simple term and it's KISS. K-i-s-s and it's an abbreviation, it stands for keep it simple, stupid. Write something to people who are not educated in the legal sense of the word, right, who are not lawyers. You have to speak in simple language so that your five-year-old gets it. That's a big one, because this contract and you're right there are 25 pages. You look at page one and your eyes begin to glaze over and there are 26 of them. So it really has to be simple. It has to. You really have to kiss it, okay. So there have to be identification who the parents are, who the carrier is. There have to be provisions for insurance. They have to be provisions for estate planning. There have to be provisions for insurance. There have to be provisions for estate planning. There have to be provisions for what if something happens? What if something happens to the carrier during labor? What if there has to be that protection?
Speaker 2:That's what you're dealing with. I think a lot of times too, something that comes up is what happens if something happens to the parents and what's going to happen to the baby. How do you walk parents through that when they if maybe they haven't thought of they think I'm going to be the parent, so I'm going to carry the baby, but now there's somebody else that's carrying the baby. So you have to determine who's going to be responsible if the parents, you know, something happens, happens, they're in a plane crash, and now? Now, what do you have to advise parents through that process and what do you advise for that?
Speaker 4:a hundred percent. I, I have to advise it, and it's in that contract. There have to be provisions for um, estate planning for the parents and for the gestational carrier as well, because the carrier could be married. We don't always get carriers who are single women. Sometimes they have a husband and a family and their own children. We have to provide it.
Speaker 4:That's the portion I was talking about the what, if, what if it happens? Because bad things happen, happen, unfortunately, to all of us, and we need to be in the preemptive stage of all of this. We need to think of this ahead of time. If you see me on Facebook, you don't have to, but if you did, my icon is a chess board. Right, you have to play chess. You have to anticipate what happens, not after it happens. You have to be one step ahead of it, and that's how we avoid litigation.
Speaker 4:And I'm saying this I'm a lawyer, right, I litigate, and I tell my clients this every time. Your best chance to finish your case is outside of court, and the best lawyers actually are the ones who settle it outside of court, because settlement involves creativity. When you go to court, you delegated to a person who just sits there in the black robe who doesn't know you? Same with surrogacy. You have to be preemptive, you have to think of it ahead of time and that's why those contracts are 26 pages. So I always put estate provision, planning provision, in the contracts and I give referrals to estate planning attorneys and if I don't have them in your state, I will find somebody for you, because we are a network, we ask each other questions and we help each other.
Speaker 1:Yeah. Are there any specific legal safeguards, protections that you believe should be implemented or strengthened within the surrogacy process for them parents to really protect them?
Speaker 4:First of all, I don't think that there's enough counseling for intended parents, Because what happens if the surrogacy does not end with a viable fetus? What happens if there's a reduction of multiple embryos that has to occur? I don't believe that even today again in 2024, there's not enough support. I know there are support groups, I get all of this, but it's not individual enough, it's not personal enough. It needs to be one-on-one and I hate to make it a mandatory requirement, but there needs to be an understanding that this is going to be. I'll take it back. It may be it might become a gut-wrenching experience. It's a possibility and everybody handles this differently. There has to be something where people can go back to and say this is what happened to me and I'm I'm dying inside, but they have to be prepared for it before they begin, because again, doing it in retrospect is not really helpful. It's it's putting a band-aid on the wound and we want to prevent it from bleeding.
Speaker 1:frankly, yeah, I meet with intended parents daily and the education that goes with explaining to them you've entered into this process of surrogacy, what will our agency do for you to protect you through this process? And the thing that I'm coming up against is every agency does it so differently and there are, in a lot of cases, agencies who miss the mark in a big way in supporting and educating the parents. And as a parent, you come into this. You don't know how these agencies operate or even how to ask that question. For instance, what type of support will my journey coordinator, how many cases is others, who you're kind of left wondering well, what's next? What are the next steps? What are the expectation?
Speaker 1:And I do I think there needs to be more education, because I feel sad, choose not to go with us. Here are the questions I want you to ask the agency how do they pre-screen their surrogates? Are they requiring those medical records to be collected from the facility or are they just getting them from the surrogate directly? And a lot of parents are like I didn't even think about that, I didn't even know to ask that question, and so I think it's getting back to the basics of the people who are the professionals leaning on and really wanting to offer that guidance and advice to get them to that next step of entering into a legal contract, knowing what questions to ask and things to look at.
Speaker 4:And that's what I kind of started today with. Information is what we need to provide. You are so right, casey. People don't know what to ask and they don't know what they don't know. But we do, and that's why they come to us. That's why they come to you, because you are it. You have not done it. You educate, you do this.
Speaker 4:So I do this with my clients as well, and I tell them this is what you don't know. I'm going to tell you what you don't know. I'm going to tell you what you don't know. So please listen to me. This is the list, this is, and every item has five different subcategories. So my approach to this is and it sounds cliche, I'm sure, but what I tell people is that there are no stupid questions. It could be stupid answers, but you have to ask the question and if you don't like the answer, ask again and ask again, and if you still don't get an answer, then go somewhere else, because the last thing you want is to start this process and not having all the information that you should have. I am completely with you on this one, ladies, totally.
Speaker 1:The laws are different in every state with regards to termination. How do you advise your intended parents when it comes to the laws with regards to termination and where their surrogate should be, and advice that you give them on that? Well, remember, I'm in.
Speaker 4:California, yeah, california is the goldmine for all of us.
Speaker 4:We are on this particular issue, we're so liberal. It's unmatched, I don't think, by any other state to the degree that we have that available in California. Massachusetts is actually not bad also, but when we talk about states like Alabama, which is a hot button issue right now, and that case is on appeal or Louisiana, where embryos have given a status of a human being, that is a whole uncharted territory and I don't envy any intended parents in those states because that is just. That is just bad. So, and that's when people travel to get help, they go to other states.
Speaker 1:I mean, I know Texas is a different ballgame, whereas if you travel you could be prosecuted for even leaving the state. But these other states with maybe some more strict restrictions around termination, is there liability in traveling to a state that recognizes and allows them to have the right to make that decision?
Speaker 4:I don't think I can opine on this. I'm not licensed in those states so I can't tell you. I can ask and find out, but I would not be the person to give you that information.
Speaker 2:It's not in my ballpark, so when you're having these conversations with parents, you have the luxury of being in a state where they get to make these decisions.
Speaker 2:However, it's so unusual with surrogacy because if there is something wrong with the baby and the parents want to make a decision to terminate and the surrogate has agreed to that as well, I guess how enforceable is that legally? Have you ever seen any issues come up with regards to parents and surrogates disagreeing on termination for any reasons? I know this is something that is a heavy topic that we talk about when we're intaking surrogates and telling them about the possibility of this, but most people enter into this thinking why would anybody want to terminate a pregnancy? I thought our goal is to have a baby and they don't realize all the medical reasons and things that could happen that might make the pregnancy not not, I guess, a pregnancy that they want to have continue because of whatever reason the quality of life of the child, the risk to the, risk to the carrier, whatever the case might be. I just I wonder do you ever have situations where surrogates or intended parents get stuck or get hung up on that language in the contract?
Speaker 4:Not with the contracts, and that's because the contracts we do are really well written and everybody has a lawyer, and California has passed a law that says every party to a surrogacy contract has to have independent legal representation, and that is exactly why they did it. This is one thing I agree with California, who knew that is one right thing they've done because everybody has a lawyer, the carrier has a lawyer, the intended parents have a lawyer, agency has a lawyer. Everybody is protected. Of course, god help you if you go to some bozo who doesn't know how to do it. That's a different issue. This is why we do it exactly that way and that's why the new law was passed.
Speaker 2:When was that law passed? In the last year, I guess. I assumed that it's always the case that a surrogate and an intended parent have to have their own counsel. At least that's the way that agencies always do it and we do it. I just assumed that that was the case everywhere. But that's not the. It's not a law elsewhere.
Speaker 4:It was not the law they did it, so it's just best practice Correct, but now it's the law. It's for California but not necessarily for other states it's where the law has met the pragmatic sense of people who do this. That's actually the best result. So and my contract talks about the medical procedures and all this so I, in my practice, I haven't had it. I know my colleagues had it, but it's not often. Again, california, what can I say?
Speaker 1:Yeah, I know you have a medical. You went through medical school. I'm really curious what brought you into the fertility law and just in this industry as a whole.
Speaker 4:And that's what brought me into this, because I had a somebody asked me a question a long time ago about this particular issue and I did not have an answer and I said, well, why don't I learn it Right? So I did, and because I have that background, the language became was so easy for me I don't need to look it up in dictionary to know what it means. So that's why I did it and it kind of it was a match made in means. So that's why I did it, and it was a match made in heaven. So that's kind of how it happened. This is a particular area of law that I really like and enjoy. It's not your typical litigation where you have to go to court and dispute whether your house was built right and whether it's upright or should be horizontal. That's not what I do at all and it's more. You know, building families is not like anything else. It's a whole different thing. It's pretty special.
Speaker 2:In your practice, do you tend to typically represent intended parents more or surrogates?
Speaker 4:I typically have more intended parents than anything else. I was contacted by two ladies who said they wanted to start their agency and they asked for my help and the forms and once I've spoken with them they were not sure if they want to do it. I have a feeling they wanted to find a shortcut which did not sit well with me. So we parted company on that issue. But for me it's mostly intended parents. Sometimes it'll be a carrier, okay.
Speaker 1:Yeah, there's no cutting corners. I think there are a lot of agencies that do, but it is such a necessary to make sure all of the items are completed with thoughtfulness for both the surrogate and the intended parent. And that includes starting up and making sure your agency agreement reflects those items and really making sure that it's thoughtfully put together where it's received well.
Speaker 4:And it goes back to that emotional issue we're talking about right, because, um, I'm sure you know this, because that's what you do but surrogacy has become an industry and, like any industry, there are some people who are just intent on on use it to make money, yeah, and everything else falls by wayside and it's not paid attention and it's discarded. So when I lectured last time a few months ago, I looked up the numbers and surrogacy this year, by revenue, is going to exceed the revenue of the tobacco industry. Wow, I think surrogacy is projected to exceed the revenue of the tobacco industry. Wow, I think surrogacy is projected to be 15 billion. Wow, I can't even compute that number. I stopped after the first five zeros. I can't do this.
Speaker 2:Who's getting all that revenue?
Speaker 1:Probably the doctors I was going to say. That's a huge piece of it. I am curious, maya. You had said you feel as though there are agencies that could be doing it better to support these intended parents when it comes to the legality side of things. I'd love if you wanted to share how you feel like the agencies could be really doing it better.
Speaker 4:So again, that's based on my experience, but I've seen the calls that I get, the conversations I have. So a couple of agencies. The issue with them is not every agency wants to consult an attorney, right, they do their own contract and not necessarily know what the contract should happen when, what it shouldn't happen, how it should be written. I get it. I would be the first one to tell you that writing a check to a lawyer is not a pleasant thing, I understand, but we do have a purpose. There's a reason why we exist and we exist for consumer protection, not the other way around. Not all of us are bad people. Some of us are here to help. So I've seen contracts from agencies which just really make my hair stand. One agency contract included liquidated damages if the couple who used the agency services first time for the second time would go somewhere else.
Speaker 2:What would the related damages be? What does that mean? I don't even know what that means.
Speaker 4:They had some provision that had said that if they don't use this agency for the second surrogacy or subsequent surrogacies, they agree to pay them the sum of X number of dollars or subsequent surrogates is they agree to pay them the sum of X number of dollars.
Speaker 2:That's crazy. I've seen that too. I've seen that and I can't imagine ever agreeing to that. Because you have the just like if you go anywhere, if you have a service and you're like wasn't totally satisfied with that service, I'm going to try a different company next time. Like can you imagine anybody like feeling like they're right?
Speaker 1:Well, and then, further than that, how, as an agency, I can tell you I am not licensed to talk about insurance, nor am I licensed to give you legal advice or tax advice or clinical advice. We want to leave that up to the professionals. So there shouldn't ever be a time that we are assessing ourselves in a place to say, here's the contract that we've drawn up. Sign the dotted line Like that to me is bonkers, to be quite frank, that we would be even suggesting that that would be the way that you do it as an agency. That's why we have these professionals. That's why the professionals are educated in that way to be able to give that advice.
Speaker 2:So it's expensive to do things right, but I feel like the fear that drives me is that it's more expensive potentially to do things wrong, sure.
Speaker 4:Exactly, exactly, five thousand percent, and that's what I was saying before. I know what, I don't know, and I won't touch it. It's bad, it's bad for me, it's bad for you, it's bad for everybody who calls me for my help, because if I do it that way, I'm not helping you, I'm actually going to cause you injury, which is not what I'm doing yeah so that particular agency insisting on liquidated damages.
Speaker 4:I understand why people do it. They are so, so hungry for this to be successful. They so much want this to be great, they so much want this baby. They want to exped, expedite this. They've tried for years. It doesn't work. We're here, we're at the agency. Let's do this. Well, what happens? Maybe it happens, maybe it doesn't, but I'm going to do this contract. I'm going to sign it right now. That's the issue. They rush into this because of the emotional issues, because of whatever happened before. They go into this not prepared and those particular agencies don't have the brakes on to tell them take a moment, you have to do this right. Take a minute, talk to somebody else. We can't advise you on these issues, but this is who can. That's the problem.
Speaker 4:And that's not the only agency who does this. You know that. You've seen it, you said it yourself.
Speaker 2:So what other things have you seen that there, that agencies are missing the mark on aside liquidated damages and holding people hostage to their service is one. What else have you seen?
Speaker 4:I think not all the agencies are willing to do background check for carriers. That's a big one. The criminal background check to me is important. Those things, the medical disclosures, are important and I've seen agencies kind of also cut corners on this. Well, she told us she's okay, that she has a driver's license, she has no criminal conviction, so I don't need to check it. I come from the background where you check but verify, because one of those again one of those if you don't verify, it comes back and you're presented with a fait accompli and it's something that is horrific and it's on you that you didn't check. It's much easier to check, it's much less expensive to check and then you have the answers where you can tell your prospective parent we can't use that surrogate because she did not disclose, so we can't trust her that if there's a medical procedure she has to do, that she will do it. That's buying litigation, that's not good. So those are the big ones really.
Speaker 1:Yeah, that's a necessary one. We've learned really quickly what, not only do we want the surrogate, but her partner and anybody over the age of 18 that lives in her home. And then also we take it a step further because this surrogate is trusting her partner and anybody over the age of 18 that lives in her home. And then also, we take it a step further because this surrogate is trusting this process too. We want the parents to have had a background completed, as well as a as a necessary next step of these are the things we're doing in trusting each other. I think that it's it's fair to make sure that all parties feel confident, as they're walking into this, that they can trust the other person, because we're doing this for nine plus 18 months in some instances.
Speaker 4:It's a long road. It's a long road and you have to have trust that it's going to get done right. It's going to have. You need some assurances you are able to trust the surrogate and the intended parents. You know stuff happens, it just does, and you want to have all the precautions to be discussed and negotiated if you have to, and put in a contract in a simple language. Have them sign it with the assistance of a lawyer who does surrogacy language. Have them sign it with the assistance of a lawyer who does surrogacy, and then you can be on the way and hope for the you know for the best.
Speaker 1:I always leave the intended parents, when I'm talking with them, the tools to have and decide either. A is our agency, the agency for them, after knowing what we're going to do for them and supporting them, but I also want to leave them with the tools of. Here are the questions I want you to ask any agency you're talking to, and so I have some really heavy points that I want to hit and let them write it down so that, as they're interviewing these agencies, they can ask these similar questions. As an attorney, when you're talking to an intended parent who's chosen you as their attorney, or having that first consultation to determine if they will be having you as their attorney, do you leave them with any advice in? Okay, I know you're looking at your options. Here are the things I want you to ask when you're deciding on what attorney you're going to choose. I do exactly that.
Speaker 4:I do exactly that because again.
Speaker 1:Can you share some of those questions or those things that you give them? The reason I ask is our listeners, I hope, are going to be an intended parent who can see and have their tools to be successful when they're looking for that attorney.
Speaker 4:Absolutely, and I'll tell you why I do it. Just like you, I have a certain reputation after so many years and I'm going to preserve my reputation. I don't need to protect my secrets, because they're not secrets. That's what I do and, frankly, there's enough work for everybody out there. I want people to respect me for what I do and not think that I'm hoarding information for whatever reason, which is not even. It's just not done that way. It's not good practice.
Speaker 4:So when I speak to prospective parents intended parents I will tell them I know you're going to look around for other attorneys and that's totally fine. That is your right and it's the right thing to do, because you want to be able to find somebody you can work with, because, god knows, there's no shortage of attorneys in California or anywhere else pretty much. So this is what I would like you to think about. You need to find out. Has this attorney been doing surrogacy work? For how long? Have they done contracts? Have they done contracts for the IPs or GCs? Have they done contracts? Have they done contracts for the IPs or GCs? Have they done contracts? Have they reviewed contracts for the agencies? Have they worked with egg donation contracts? Have they worked with embryo transfer contracts? Have they done counseling provisions in the contract? That's a big one. You want to have it in a contract and it's what we talked about.
Speaker 4:Have you discussed you want to discuss with your prospective attorney their position on the termination, because many attorneys have a personal issue with that particular fact scenario. Some attorneys are opposed, some are not. So you need to know that your attorney is going to be on your side if it comes to that. Some attorneys won't deal with it, just like some OBGYNs won't deal with it for religious reasons, not to mention political reasons. So those are all the questions you want to ask. So you have to have your bullet point list of everything you want to ask and take time getting answers. Like I said before, if you're not getting answers, ask again or, if not, go to a different person.
Speaker 4:You should find somebody who you are able to trust to answer your questions and to have your back, Because otherwise the results will be just absolutely horrific. And that's even before we talk about the mistakes made by surrogacy clinics. That's a whole different thing.
Speaker 1:Yeah. So, you'll have to have a whole nother podcast to talk about those items.
Speaker 2:I'm curious what your thoughts are about the escrow side of things. I know there are a lot of independent escrow companies for surrogacy and there are a lot of attorneys that have escrow programs built into their firm and that they hold escrow for their clients. What are your thoughts on that? Is that something that you offer? Do you think that that's a good thing to do, or how do you feel about attorneys holding escrow?
Speaker 4:I don't offer it. I think to me that's my opinion. Other attorneys may feel differently To my opinion. It's a bit of a conflict of interest. I don't want to touch money. It doesn't make me feel good. I don't want it. It's a whole lot of other fiduciary responsibility which is not covered by my contract and won't probably even be covered by my malpractice insurance. I'm not going to be the bank or the escrow company or the escrow. I don't want it. The clients should not have an expectation that I will be holding their money, because that's not what I do. I provide legal advice, okay. So I don't do it. I don't like it and I won't endorse it. It's one of those things that it's not in my realm of my skills. So I won't touch it and I don't think it's good practice. I know some lawyers do it.
Speaker 2:Why do you think that's so common? Why do you think other attorneys do prefer to do it? What is the motivation for them to do it? I guess I'm asking you to speculate on why other people do what they do, but I am always curious about that.
Speaker 4:Well, I can tell you by what I've learned from my colleagues, when we go to seminars and we talk to each other and some of them do hold escrows for their clients I think it's some of what I would control issue, if you will they want to make sure the money is there, they want to make sure they know where it is, they want to make sure it's accessible to them when they need it. I think it's one of them and they want to be able to tell the clients look, I'm going to protect your money. That's what I think is an underlying issue here, which, again, that's what escrows do. They're the professionals.
Speaker 1:Let them handle it Right. Yeah, it's getting back to the. Let the professionals handle it.
Speaker 1:I think, that there are a couple attorneys that have developed the escrow in-house and they have a portal that allows you access to those statements every month, and so I say those attorneys that have that, okay great.
Speaker 1:But I also know attorneys who don't have an established any of those items and there's something to be said as far as a surrogate is concerned me being a two-time gestational carrier, knowing that my escrow is separate from the attorney that's representing the contract, and and being able to look at when I'm ready to submit something.
Speaker 1:It's not the attorney who drafted the contract that is determining whether or not that I'm owed this and can approve it, but rather a separate entity that is really reviewing the language in that contract to say, yes, based off of the contract that you both signed parent and surrogate, you are owed this, you know, and then that's accepted and approved, whereas I do feel like potentially, you have a conflict of interest when it's an attorney holding escrow who also drafted the contract. You know I lean towards. Are they going to maybe determine that that's not an approved thing because their client is the intended parent and I've seen so, just so we're clear. I have seen attorneys who hold escrow and that not be the thing. But those are the questions, as a surrogate, that you have to go into wondering and thinking about.
Speaker 4:And that's that's what I was referring to, I think, even from my comfort as a lawyer. I don't want it. I don't want anybody to question if I'm impartial or not, because that's not my job. I am partial to my client, but I don't want to be responsible for finances in the case. That's not my thing. People need to learn to stay in their lane and that's kind of where sometimes. And that's kind of where sometimes often where the problems come from.
Speaker 2:I don't need to do what I don't do, so no, I'm against it, have my own feelings about it too, but I'm sure there's things I'm not considering and I maybe we should talk to another attorney who really feels strongly that they should hold us. Yeah, I would actually love that it is something that I, as a surrogate, I feel more comfortable, having it be a third party separate from the IP's attorney, but maybe there's maybe that's misguided who knows, I don't know, I guess I don't want to hear both sides, but thank you for your perspective.
Speaker 4:Different opinions on different issues, that's for sure. I'm not saying my opinion is right. I mean it is right, but maybe is right. I mean it is right but maybe. But that's why we have different people do it. So you can ask and maybe they have a point. For me, I think it's crossing the line, so I will not do it. Some do it. More power to them. It will not be me.
Speaker 2:Yeah, and I have another question for you that's relevant to your experience not asking you any financial advice or anything. I've seen different agencies do things differently and I am not sure what's the best way, having been a surrogate and having worked with agencies that did things differently too. When you enter into the legal stage, parents and surrogate parents are drafting the contract, the surrogate's waiting to receive it and review it with her attorney. A lot of agencies advise that the surrogate and the intended parents do not communicate with one another during that time, only communicate with the attorneys, and most agencies I see also advise stepping back and just letting the intended parents and surrogates have those conversations and the agency is not helping to give any guidance or facilitate that and kind of staying out of the way.
Speaker 2:For me. I felt like in my one of my journeys there was some disagreement about some language in the contract between my IM and I that I actually think we were totally in alignment on, but we thought that we weren't, because we were relying on the attorneys to have that communication and we ultimately ended up having to come together and like go to lunch and talk it through so that we could understand where each other were coming from. So I'm of the mind that surrogates and intended parents should communicate with each other, because then they can understand the intent. But so often I would say majority of the time attorneys advise that the surrogate and intended parent and agencies also advise that the surrogate and intended parent don't communicate directly during that time. What is your opinion on that and what do you? How do you advise your clients?
Speaker 4:I think the best approach is sort of a mediated approach where you, everybody's an adult right, everybody has opinions, everybody has a lawyer, everybody has friends who whisper in their ears God, I don't know why, but whatever, I think the best approach really is for for everybody to talk together, because this has to be a coordinated effort to get what you want to get. And God help us if everybody understands this contract. I can't imagine that a regular person would read this contract and know what it says. So a conversation is something that should happen, which I welcome, and it's like a mediation in any other case. You come to the table and you talk, and if the agency is against it, that maybe it's not the right agency again, my opinion.
Speaker 4:But I think that when everybody wants for this to happen, everybody should be able to talk to each other, because if I don't know what you want other than getting a piece of paper from your lawyer, I'm going to give you my piece of paper back, and then what? So I think a conversation is important. I'm not against it, I'm for it. I don't see any reason not to have it. And look, you're going to trust your GC to carry your baby. You're not gonna talk to that person, just think of it.
Speaker 4:Yeah, that's it, practically real-life conversation. Forget the contract, forget the lawyers, forget anybody else. That person is going to carry your baby. Are you not talking to that person Tell?
Speaker 4:me, yep, I agree, and if the IPs are paying for your medical expenses, are you not talking? And if, god forbid, there is a serious medical issue, are you going to hide behind the contract and not have a conversation? Think of it that way. Just let it percolate a little bit, because no lawyer is going to be good enough to save that issue if you can't talk directly to the person who needs your help Well, and leaning on the agency.
Speaker 1:If the agency is doing a good job and hopefully you've chosen one that can be that mediator and allow for the intended parent to have a different perspective of, maybe, why that surrogate came to that conclusion, and vice versa, right, I've had many conversations with a surrogate who says, well, I don't understand why the intended parent doesn't want to communicate with me until I'm medically cleared and sharing that perspective of this intended mom or this family has probably gone through so much to get to this point. They don't want to fall in love with you and then find out that you're not medically cleared. They want to wait until we've kind of passed that next milestone. And when you share that with a surrogate and that perspective, she says, oh gosh, I didn't even think about that. So it's really, as an agency, our job to step in and be able to share those fears of those parents or that surrogate is having and to alleviate them in sharing potentially what this, how the surrogate is feeling and being able to navigate that you know that the agency's job is to be the conductor.
Speaker 4:Yeah, because otherwise it's going to be like what you said, sunshine I'm not going to talk to you until you sign this, or blah, blah, blah. I'm not going to talk to you because they told me not to talk to you, but the agency, when you step in, you say this is the potential and this is what you should be thinking about, and this is what she should be thinking about. It's okay to talk.
Speaker 2:And if we're afraid that we are not in alignment and it's potentially going to break the match in legal because we're afraid that we're not in alignment on something, what's the best way to figure out if we actually are with, other than speaking to each other and like having that back and forth and not like, per my attorney says, I said this, you know, it's like just I will tell you one thing I, in my practice not just surrogacy, but even if it's a family law matter if I'm told that an attorney tells another side, don't speak, speak to them, that gives me really bad feeling, really bad feeling.
Speaker 4:If you can't talk, then what are we doing? Okay, words matter. It matters what they say, it matters how they're given. It matters how they are they say. It matters how they're given. It matters how they are produced, if you will. Words matter, and the biggest miscommunication is when you don't talk. So I am totally for it.
Speaker 1:I think this was a very long answer to your question.
Speaker 2:No, it's a perfect answer. No, it's a good one, though, because I always wonder that I assume that there's a reason why, that this is the general norm and this is the advice, and I um, I haven't asked anybody else, so I will, but you're the first person I'm asking and I I feel like it would be, and maybe there's something I'm missing of why people advise surrogates and intended parents not to speak to each other during that legal contract. I don't know, casey, what do you think about it?
Speaker 1:So I tell my thought is this we want to remove the financial component, right? So I always tell the surrogate and the intended parent that the benefit package has been reviewed and signed by all parties. So we know as we go into the legal contract we're not adjusting or having any conversations about. I think actually we should lower this. So if there, as long as we are removing the dialogue with conversation around benefit package and changing and negotiating that, I love the idea of us being able to come together if there's something in that contract that's concerning, because something about travel or about restrictions on organic food or how the parent is feeling about the surrogate.
Speaker 1:You know lifestyle, maybe she's used, maybe she'd want her to not use certain chemicals. I think those types of things and understanding why that parent has come to that conclusion is helpful for somebody who maybe doesn't have that lifestyle, for them to understand why this other person, this other human, came to this conclusion that they want their surrogate not to carry their phone in their pocket. And I've seen things like that hang up a contract where the surrogate can't understand that perspective, but it's getting on the phone and realizing we're all human. Let's share why I'm so certain I don't want my surrogate to have this and share that.
Speaker 4:So that brings us back to the common bottom line is a conversation is a good thing.
Speaker 1:Yes, it is.
Speaker 2:I agree. Negotiating finances is not the time. Legal contract is not the time to do that. All of that should be nailed down before you've gotten to that point. Yeah, yeah, but sometimes things that are financial that get hung up in contracts are asking to put a cap on lost wages or things like that, and I've seen that come up in contracts last minute too. I think maybe that should be something that's also discussed earlier on. The agency shares that hard cost sheet and what the anticipated lost wages are. So if you want to negotiate that before you have a match, meeting is probably the right time, not during the meeting, but that's again.
Speaker 4:We're coming back to the same issue. It's a conversation, and what I offer, what I often offer, is kind of of a mediation. You can call it what you want, you can call it mediation, you can call it um, whatever you call it, but that's. That's one time where everybody gets together and just talks what are your issues, how can we address it, what, what? Here's my proposal. I hear what you're saying. Maybe we, we can do it differently, but in the end, everybody wants to have a family in this conversation, because that's not your typical dinner conversation.
Speaker 2:And every surrogate wants to help the parent get there too, and I think surrogates also have a fear of giving up control and autonomy, because we do give up a lot of autonomy and a lot of control, and intended parents more so, but surrogates are not used to. Why can't I travel? Why can't I do this Like, why can't I? I love to dye my hair. I dyed my hair in my own pregnancies. How come you don't want me to dye my hair Like? Those conversations should definitely happen, I think, and not just be like we're just the attorneys.
Speaker 1:Address the compensation and now a surrogate has reached medical clearance, we're addressing the legal contract and she's feeling coerced into this contract. That now is changing the line items that they all agreed upon, and I see agencies do that and it makes me really upset to know that we are putting this person in this place to say I've spent several months, but now we're going to ask you to receive a lesser compensation that everybody agreed upon, which is a bummer when that happens.
Speaker 2:Do you ever have clients ask you to make changes like that, and how do you advise them?
Speaker 4:I actually have not. Oh good, that's good. Maybe partially because there's a lot of conversations going on, so I haven't had. They know what they're getting before it's signed and well before it's signed. So and it's? You don't want to do this under stress. You don't want to do this, thinking, oh my gosh, if I don't sign it, I'm never having this done. Oh my gosh, that's not how you do it, especially in surrogacy. That's not how you do it. It's not a typical contract. You're not buying a car, not a house. Um, none of that, it's no, I haven't, sorry, can't help you there.
Speaker 1:Good, good, what, um what do you want to leave our listeners? If you could tell them anything and any advice, um what would that advice that you'd like to offer these listeners? I?
Speaker 4:think everybody needs to. Having listened to this, needs to understand that we as professionals, agencies, surrogates support people. We know that this is probably going to be the most difficult thing you have done in your entire life going to be the most difficult thing you have done in your entire life and because how difficult this is whether you're a GC or IP, it's just difficult it's gonna grab your heart and not let go and you want to make sure you give it your best if that means you have a conversation or five conversations. If you need an extra conversation, have an extra conversation. If you're not happy with your lawyer, find somebody else. You will find that person. But because of how important this is, you want to make sure you have everything you need to be aligned for this to be a success.
Speaker 1:Yeah, thank you, don't settle. Yeah, do not settle.
Speaker 4:and ask questions, not on this one.
Speaker 1:No, not on this one. We do a segment in this part of the podcast too, a segment in this part of the podcast too. We get some chats in on social media platforms where they'll say a very crude statement without a lot of thought, and we would love I'm going to drop that chat in here and I'd love for you to read it and then share your opinion on it.
Speaker 4:Okay, Surrogacy is basically human trafficking. It is harmful to women and babies. This is not the only opinion on that matter. In fact, I can tell you that the Pope says the same thing. The Pope of the Catholic Church issued a statement last week that he is against surrogacy and the surrogacy should be banned. Well, I don't agree. I don't agree with this because surrogacy is how we create families in certain circumstances. Not only that, surrogacy is a way for some people to obtain medical treatment for diseases that are not treatable otherwise. So if that is your position, you are entitled to have it, but while having your position, you should respect the position of other people who believe surrogacy is the way to create a family.
Speaker 1:Thank you. Okay, I have another one. Let me drop this here.
Speaker 4:Surrogacy is largely a scam. You can be gypped out of money. You can be gypped out of money when you buy a car. So it can be a scam. Yes, it can, but mostly it's not.
Speaker 1:It can be a scam. Yes, it can, but mostly it's not. Are you able to elaborate?
Speaker 4:What would what? What do you think is the component that could be a scam for intended parents? Potentially? I'm not sure what this person is referring to, but I can probably Exactly it probably does. That's why we have escrows to hold the money. So if they're talking about financial scam, is it possible? Sure, but that requires many people to be in on it. It's not that simple to be successful in that scam. This is not your, you know. It's not a made-up scheme. It's a different thing. You have escrow companies set up exactly for that reason. So we are as protective of it as possibly can. So can it be? Anything is possible. It's possible. It's going to snow in California. Is it going to happen? Probably not.
Speaker 2:I think I have seen in some of the groups where people are matching independently, I've seen comments from women that are like um, oh, I've, I found these intended parents. I love them, I want to help them. They are going. They don't want to use an escrow, they want to pay me monthly through through Zelle for like or through PayPal or something. Yeah, that's, that's a red flag run. That's a scam, right Like I. Just I people need to just make sure that they're following the proper protocols to avoid it. Don't just go with something as complex as surrogacy and think that you're going to go figure it out and you're going to DIY it on your own without consulting professionals who understand the process. Don't go on a Facebook group, meet somebody, get pregnant and then wait for them to sell you monthly payments and then think that parentage is going to be all worked out and it's all going to be great, like. It's not a simple transaction. This isn't a Facebook marketplace.
Speaker 1:No, no, please don't.
Speaker 4:Here's the problem. Here's the problem. There will be people who would say we can do it ourselves. Here's the problem. Here's the problem. There will be people who would say we can do it ourselves. Go for it. Go for it, do it yourselves, but realize that if there's a problem, I'm not going to be able to help you.
Speaker 1:You are, and that makes me cringe because not only if they do it by themselves they're not hurting themselves. They could be hurting the surrogate if they don't have proper insurance in place. And it's now deemed not surrogate friendly and these bills are in her name. Go for it. For me is so. I cringe because I know there's so many things that could go wrong. Maybe she doesn't have life insurance. That was put in place. If they're trying to do DIY, those things are there to protect all parties, to make sure that we are doing this the right way and that the outcome is a good one. You know so just every time I hear it.
Speaker 4:It makes me cringe too, but you can't force people to have an understanding that the process is there for a reason. You just can't do it. There's some people who are just hell-bent on doing it their way, and that's what it's going to be, so do it your own.
Speaker 1:Most everybody. I think that's why Sunshine and I have made it our mission to really bring forth the education component to this process. First it was with surrogates component to this process. First it was with surrogates Anybody who would listen, we would share our thoughts and education that we've been able to gather in the years that we've been doing this. But now it's the intended parents and I'm excited what that looks like and I think it's really going to be a neat few years of us being able to hopefully give some good understanding and perspective so that these journeys are done right and safely.
Speaker 4:And so that the people who are thinking about doing this have some perspective what to look for and who to work with, frankly, and know that there is information out there and there are people who do this that are available to you. What you have to do is have to look around and ask your questions.
Speaker 1:Yeah, thank you so much for being on with us today. This is a real delight, and we'll have to do this again.
Speaker 4:I would be happy to and thank you very much and happy Friday Happy.
Speaker 2:Friday. Thank you so much.