Hello and welcome to Quimbee's presentation of advanced and ethical drafting of surrogacy contracts. I'm Colleen Quinn. I practice out of Richmond, Virginia and have been in practice since my clerkship with the Virginia Supreme Court in 1988 to 1989. And this is one of my favorite areas of practice. I run an adoption and service law center and have been doing family formation law since I started out in active practice in 1989. So that's more than 30 some years ago. And by way of background, I've served on the Academy of Adoption and Assisted Reproduction Attorneys, actually been on the board of trustees and was president of the academy at the time that the Academy of Adoption Attorneys, American Academy of Adoption Attorneys and the American Academy of Assisted Reproductive Technology Attorneys, we merged that into one academy. I love giving these presentations, and this one is going to be a little bit more focused on the advanced side of contract drafting. So this presentation does assume that the attendees been practicing in this area of assisted reproductive technology for a number of years and has drafted a number of surrogacy contracts, or you've attended art drafting fundamental courses and know the basic terminology, structure and provisions of a contract. This outline is not going to cover all of the provisions. We're just going to cover some of the more complex areas. Or if you have had no experience and attended no courses, then you're just a renegade and you just want to dive into the more complex aspects of drafting surrogacy agreements. But please do look into learning some of the fundamentals as well. All right. So the term surrogacy contract in this presentation is going to loosely refer to both true surrogate and gestational carrier or gestational surrogate arrangements. However, clearly a true surrogate who is genetically connected to the child, those agreements have greater risk and other implications. Please make sure you know all the acronyms involved. There is an alphabet soup of different terms used in the art world, and this is an advanced course. If you need a handout on the acronyms. I've got a handout that one of my Academy colleagues put together a number of years ago. Also, most of the complexity and contracting in the art world comes from a lot of what ifs. And with experience, you'll see more and more of what of these what ifs coming into reality. For example, you know, having intended parents make sure they have their estate documents in place in case something should happen to them during the arrangement. And I actually have a colleague who had a case where the intended parents were killed in a car crash. And then last year, I was consulted on a case where the intended father, who had a child in utero with a with a gestational carrier, his his own genetic child on the way, he actually committed suicide. And so we do learn from these actual what ifs coming into reality. I had one client asked if I ask if I sat around and drank wine coolers and thought of morbid scenarios and I said, Yeah, that's basically what we do. But we are trying to draft for various contingencies and mishaps. So you do want to know the guidelines and other applicable regulations, statutes, guidance, ethics codes such as the academies ethics code. We don't want to be caught off guard and end up breaking or violating some laws. For example, in Virginia, we have an anti surrogacy broker statute that prohibits anybody from accepting compensation for inducing intended parents and a carrier to enter into a contract. And so that also means that the intended parents or the carrier could be aiding and abetting in a criminal statute. So we've got to do some work arounds. When I have clients that want to work with a surrogacy program also in Virginia and in a number of states, compensation can potentially void the contract. Michigan's got a prohibition on compensated surrogacy. Illinois has a special provision where they need a fertility doctor affidavit as an addendum. And there are issues in Louisiana where both the intended parents and the carrier are supposed to be residents of Louisiana. Nebraska have run into issues with a same sex couple being able to use a surrogate. So we do want to make sure that we are always checking with knowledgeable folks in the other states. And I'm going to go into more detail on that. All right. So I am sharing many of my materials with you with this presentation, and you are welcome to modify them. But if you improve them, if you wouldn't mind sending me back your new and improved version, for example, my questionnaires for contract drafting, my prerequisite checklist summaries, any of those things. If if you find a better way of doing them, please feel free to to share back. I remember early on in my practice. I'm Melissa Briskman, who runs Reproductive Possibilities, who's a good colleague and friend of mine. She has some great copyright language. And so I contacted her and said, Hey, Melissa, I love your copyright language, but I'd like to tweak it a little bit and make some changes. Is it okay if I use it? And she said, Absolutely not a problem. Just send me back your new and improved version. Also, I'm going to share some suggested language with you today to go into contracts again, if you improve it, feel free to send me back your improved version. Also, remember in this area not to ask other folks outright for their contracts. Remember, these are state specific. Plus they also represent years and years of work by that attorney in many cases. And they're not really just a standard template. One size does not fit all. They tend to be unique from client to client and situation to situation. So I have had clients say, Well, don't you just have a template? I'm like, No, it doesn't work that way. Each contract is tailored to that specific situation and those those particular parties. So what are we going to cover? We're going to cover making sure, you know, the American Society for Reproductive Medicine guidelines, the Asrm guidelines we're going to cover. Should you even be involved in the arrangement ethically? Is it the right thing to do? We're going to try to enforce the need for separate representation. And how do we do that? We're going to talk about managing client expectations and coordinating with the clinics and the banks. On timing. We're going to talk about requiring consultations and enforcing prerequisites being met before attempting contract drafting and providing lots of resources to your clients. And then we're going to plan for enforceability of the contract. And also, how is parentage going to get worked out? So we're also going to address insurance issues, including alternative coverage, Medicaid, Tricare, etcetera. We're going to do some of that contingency that what if planning? We're going to talk about breach provisions. And I'm going to tell you why. I think arbitration provisions typically do not make any sense. But if you want to bounce, why you think they do? Back to me. I'm all ears. We're going to talk about making contracts flexible, if possible. So addendums are not necessary. And then we're going to talk about characterizing payments and also tax consequences. So starting first with the SRM guidelines, you do want to stay current with the most recent SRM and other guidance. If you do not belong to SRM, you should join the RA, just a wealth and plethora of good information and are constantly promulgating various guidelines. So there are the guidelines for utilizing a gestational carrier that most of the clinics follow. And you want to be familiar with those guidelines because they have certain requirements in them, such as the carrier needs to have access to her attorney during the arrangement. So when we do the contract, we don't just provide for the intended parents to cover the cost of the carrier and her partner's or spouse's attorney just for the contract drafting. We also want to put an allowance in for her to have access to counsel during the arrangement, The SRM guidance and other studies while we were dealing with Covid, showed that surrogates should be vaccinated and prior to getting pregnant. And so I would use those materials and provide them to my clients and to carriers with the hope that they would follow that guidance. And then, of course, prior to Covid, there were concerns with the Zika virus, and that led us to modifying or adding addendums onto the surrogacy contracts with regard to not traveling to countries where Zika was prevalent. So you do want to join SRM and stay current. Note that the LPG group Legal Professional Group has made a number of contributions to SRM publications that I find to be very beneficial information as well. All right. So while the guidelines typically apply to the fertility clinics, they do contain a lot of medical and other socio legal factors and prerequisites. Like I mentioned, the carrier having access to her legal counsel. They require that folks have separate independent counsel. There also is an older guide from SRM on third party Reproduction, a Guide for Patients. I still find that useful to hand out and give to my clients. So also has on their reproductive FactCheck.org site some really helpful documents that are typically one pagers, 1 or 2 pagers that you can send to your clients, provide to your clients. There's a document on gamete and embryo donation deciding whether to tell or when to tell. There's one on embryo donation, one on egg donation, one on just utilizing a gestational carrier fertility rights and responsibilities. There's an article on avoiding conflict in third party reproduction. There's one on counseling issues for gay men and lesbians seeking art. And then, of course, all the Covid and Zika and reducing viral transmissions and gamete recommendations. All of those are fantastic resources to be able to just give to your clients right at that initial consultation. All right. So let's switch gears and talk about should you even be involved in this arrangement? You do want to watch out for the unauthorized practice of law and not put your your law license at risk. So drafting an agreement under the law of the state in which you're not licensed can result in legal malpractice. You always want to also associate a reputable and experienced attorney in the other state of more than one state is involved. So when we are working with more than one state, we always want to make sure that we designate, which is going to be the governing law of the contract. And then we want to map out the parentage options to make sure that we know the full game plan. So why are you involved in the case? Are you involved? Because a parentage order will be obtained in the state where you practice because the birth will occur there, because you practice under the governing law of the contract, because the clinic is in your state. All of those can be legitimate, valid reasons for you to be involved in the arrangement. Should you be involved. I haven't seen too many contracts being drafted by lawyers who have zero connection to the governing law of the contract or have any reason to really be involved in the arrangement. So we we want to make sure that there's a reason there's a basis for our being involved in that particular arrangement. Otherwise we should just refer it out to another lawyer in the other state that rightfully should be involved. I'm seeing contracts that supposedly are drafted under Virginia law with no Virginia lawyer ever eyeballing the contract. And when I get the contract and then try to do the birth certificate amendment process or try to do an order of parentage, I'm seeing that there are things in the contract that actually violate Virginia law and are completely non-compliant and that the contract technically is void or voidable because of those issues. So before contract drafting, we always want to start with the end in sight. What states are involved or potentially potentially implicate it? And we want to make sure we contact an attorney in the other states that are implicated, who practice and are experienced in art law. If you're simply trying to keep the work to yourself, that can get you in a whole heap of trouble. And I can give you a lot of war stories where I've seen that happen and I've seen very upset clients who thought that everything had been mapped out properly for them, but then ended up having to spend more money. Either I'm having to rewrite their contract or do an addendum to their contract. So we do want to just make sure that we're mapping everything out from the very beginning. So what are some examples when the attorney fails to coordinate with the attorney and the other state, the parties might be committing a crime and not even know it. The contract might be void or voidable. The other state might fail to give full faith and credit to the contract or pre-birth order. The other state might forbid the payments that were made to the carrier and prevent the birth certificate from being issued or amended. The parties may end up spending a lot more time, money, time and effort when an easier procedure could have been followed and the parties may have avoided more adverse tax treatment as well. So there are a lot of consequences if we're not properly mapping out the whole process. So you do want to be familiar, even if you're not a member of the Academy of Adoption and Assisted Reproductive Reproduction Attorneys. We we we don't we we use the same four letters from the American Academy of Adoption Attorneys. So we just kind of forget that that little R is in there. But we're finally referred to the academy also as Quad A, that's four A's. So even if you're not a member of the Academy, you do want to be familiar with their code of ethics because the code of ethics is kind of the gold star of, of ethical compliance. So the Academy Code of Ethics does set forth when a fellow of the Academy may represent a party in an art matter and when they may not represent a party. And so the code section sets out specific types of situations where the fellow can be involved in the arrangement. And so basically the fellow has to be licensed in at least the jurisdiction where the child is expected to be born or where at least one of the party resides, or the jurisdiction in which the medical procedure is expected to take place. If any of those things are implicated, then the fellow can can readily be involved in that arrangement. And then if you're not in any of those categories, a fellow can still proceed to assist with legal services. If the fellow undertakes as co-counsel with or in consultation with a lawyer licensed to practice in that jurisdiction. So if I co-counsel with a lawyer in the other jurisdiction or I consult with them, then I may still be involved ethically in the arrangement. And then we do want to make sure that in any art matter, that any contract that is that has a governing law, we do want to make sure that at least one lawyer that is licensed in that state and experienced in art law eyeballs that contract. So I mentioned earlier that I had received and seen contracts done under Virginia law where there was never a Virginia lawyer ever consulted with regard to that contract. And yet the drafting and reviewing attorneys all, you know, basically told the parties the contracts under Virginia law and this contract does follow Virginia law when in fact, the contract did not follow Virginia law. So we do want to make sure there's at least one lawyer licensed in the state of the governing law that has reviewed that contract. All right. So if you are not licensed in the jurisdiction, in the law of the governing contract, the other ethical duty that is under our code of ethics is we need to tell the client, look, I'm not licensed to practice in that jurisdiction, and it might be advantageous for us to get advice from a lawyer licensed to practice in that jurisdiction. So if I am helping clients with a contract that is done under Maryland law, I want to make it very clear in my retainer agreement I'm not licensed in Maryland and also in the contract that I'm not licensed in Maryland. And we want to make sure that there is at least one lawyer that is licensed in Maryland, that might be the lawyer for the gestational carrier. If I'm representing the intended parents, it could be that the the lawyer representing the gestational carrier is actually drafting the agreement. And then I want to make sure my clients know, look, I'm not licensed in Maryland. I have worked with Maryland attorneys before, but we are counting on the attorney for the surrogate to make sure that the contract is truly in compliance with Maryland law. And I could always double check and just pay a little bit more to another colleague in Maryland just to make sure that I understand what Maryland law is as opposed to Virginia law. All right. So we do want to put those attorney disclosures in the contract. We want to say in the contract the names of the attorneys, you know, who they represent, where they're licensed, why they're involved. We should indicate if attorneys were consulted in any other relevant states. And this makes sure that there's complete disclosure and transparency to everyone and makes the contract more enforceable. So I've included sample contract provisions in your materials. I'm not going to read those to you. They're there for your use. But the the first provision there talks about how the parties acknowledge that counsel for intended parents is not licensed to practice law in a particular state and that they're representing the intended parents based on general contract principles. So we do want to make sure that we we spell out those specifics. And I've just given you some sample language there. And we also want to make sure that everyone knows that from the very beginning of the arrangement that it's required by the SRM recommendations for utilizing a gestational carrier by the ABA Model Act and by the Academy. And it also represents best practices that each side have separate legal representation. I want my intake specialist and my paralegal both to note to let the folks know right from the very beginning at intake that separate representation is going to be required. I put that requirement in the retainer agreement. We want to coordinate with the medical professionals and the fertility clinics that we work with to make sure they back us up on that issue. And then I have an Academy letter that I'll include in the materials that I also provide to the clients right off the bat. That was written by my colleague Peggy Swain when she was the director of the art side of the Academy to try to further make sure that folks right from the very beginning know that there's going to need to be that separate legal representation. And I ran into an issue with a surrogate or a gestational carrier who was the mother of the intended mother, who just absolutely was refusing to have separate legal counsel. And it got a little bit nasty. And I had to tell my clients I was going to have to back out of the arrangement. And we ended up just having a separate lawyer for her. But the the gestational carrier who was the mother of the intended mother, just refused to even work with the separate lawyer that had been hired for her. So we did end up having separate legal counsel for her, but she was not happy about it and she really didn't want to even work with her own lawyer. So I've got a great cartoon in here. You've got this gentleman, he's talking to the devil and the devil says, And if you don't have an attorney, we've got millions of them. So I try to give folks, at least for art attorney recommendations of other art attorneys licensed in Virginia when we're doing a Virginia contract and there are plenty of attorneys out there. So we do want to give out those names from the very beginning. So in my initial intake, let the intended parents know, hey, you're going to have to pay for the carrier's attorney. And by the way, here are some names we're going to give to the carrier so she can go ahead and select her attorney now and you can go ahead and get that attorney retained. Now. So moving on, let's look at another Academy code section, which just again represents that gold star in terms of our ethics in these matters. And that that code section number 16 spells out that in every art matter in which a fellow represents a party, the other party must also have independent legal counsel. So I will tell people, look, I'm not even allowed to be involved in this arrangement unless everybody has separate legal counsel or I will it will jeopardize my membership, my fellowship in the academy. So the only time that you don't have to have separate legal counsel is if there's an uncontested process to establish parentage in which no actual conflict of interest exists or is likely to arise. And so I can do an order of parentage, action and the on behalf of the intended parents in Virginia and the carrier and her partner or spouse can go unrepresented because that's an uncontested process to establish parentage. Also, a fellow can represent both intended parents or the donor and the donor spouse and partner or the surrogate and the surrogate spouse or partner. But even in those cases, in my retainer agreement, I will say, even though you are married or even though you're in a committed relationship, if the two of you have a difference of opinion and there's a conflict there, then I'm going to have to withdraw as counsel. All right. So I've got a sample contract provision in here on the acknowledgement of advice of counsel and how each party has discussed with their lawyer in specific detail all the ramifications of the contract and that each has had separate legal counsel. Right. Moving on, let's also look at the guidance. And remember, I mentioned before that one of the requirements was the gestational carrier having ongoing independent legal representation during the arrangement. That is the section there that I've included for you on that slide. Section three, little B, Little six, which you can find in the recommendations for utilizing a gestational carrier document. All right. So I've given a sample provision as well for how the legal fees on behalf of the carrier typically would read in a contract. And so this allowance for them to have access to counsel during the arrangement, we do say so long as the gestational carrier is not taking an adversarial position. And in this sample, we've allocated 1650 for the carrier's attorney for the drafting formation and negotiation and execution of the agreement. But we've allocated another $500 for her to have access to counsel during the arrangement. Switching gears again, let's talk about managing client expectations regarding the contract drafting timeframe. Sometimes we'll have clients come to us at the last minute and they expect the contract is going to be drafted within several days or a week. I've got an anticipated timeline that's in your materials. It's a one page document that we give to the clients at the initial consultation that says, Look, it's going to take a full month for contract drafting and it outlines the entire process and why it can take a full month if they are coming to you. And everything needs to be expedited and things need to be done in 14 days or less. I charge an expedite fee and most of my colleagues will charge an expedite fee because we've got to bump those folks to the top of the heap or the front of the pipeline. And so I'll explain to them, hey, the normal 10 to 14 day turnaround for us to be drafting for other people is now being impeded because we've got to expedite your arrangement. And sometimes that does happen. And most I find most clients are more than happy to pay the expedite fee if they are in a bind and did not plan sufficiently. But that document is intended to help them better plan. So I insist on having a preliminary consult. Even if the folks are matched through a program, I want to have an initial consultation to ensure all the prerequisites have been met and then also to manage those client expectations regarding the time frame for drafting. Also, you can identify a lot of red flags during the initial consult, find making sure you find out everyone's exact marital status. I've had arrangements where it looked like the carrier was single only to find out she was living with a committed partner who needed to be involved in the contract drafting. I've had situations where we found out that she was actually we thought she was married, but now she was separated and going through a divorce. We want to reinforce the separate legal representation. We want to find out what's the surrogate's job and home situation. And I had a man sent to me where the the carrier was actually in the Navy. And the Navy has an absolute prohibition on anybody serving as a as a carrier. We also want to find out when is the conception going to occur and where is it going to occur. Where do the parties live? Where is the clinic? Map out the choice of law issues. We want to find out have abortion and selective reduction views been covered. I had a map sent to me by a program between an extremely, super, super conservative religious Virginia carrier who said that she would not abort for any reason whatsoever, even if the child had no meaningful chance of existence. And she was matched with my Chinese intended parents. I was on the phone with the Chinese intended parents using a mandarin translator and explaining to them that this is this is the mindset, the paradigm of the carrier that they've been matched with. And I had concerns about whether they were going to be of the same mindset and not even through the Mandarin translator, but directly to me. The intended mother said, No bad baby. We no take no bad baby this no work. And I was like, Yep, that's what I thought I told the program. I don't think the abortion is selective reduction views have been adequately vetted in this situation and I just don't see any contract drafting language that is going to fix this situation. So we do want to make sure that we have a match in front of us that's hopefully going to work and it's not going to blow up during the contract drafting. So I do have prerequisite checklists in your materials. I have a short version that the clients have to fill out and give back to me. And then I have a narrative version that explains each of the items on the checklist. So my checklist is not intended to be exhaustive. It's just a starting point. As we know in this area, our law is continually evolving and we're continually revising our checklist. It also the checklist should be used in conjunction with the SRM recommendations for utilizing a gestational carrier. So I've got a copy on this slide of the basic items in my prerequisite checklist, and I want to make sure that the parties have addressed all of these issues prior to contract drafting, and they've either engaged in and done these various things or they are going to do them or they are knowingly waiving doing them such as like a background check. So some of the prerequisites we want to look to are, of course, insurance coverage on the carrier. Does she have the health insurance coverage or do we have the means to put it in in place through, say, the Affordable Care Act or by other means? What screening has been done or will be done, that is, you know, that has an ob gyn cleared the carrier, has the clinic medically screened and cleared the carrier. Has mental health counseling taken place? Has psychological screening taken place? What about group, the group session? Is that going to occur between the parties? What about background checks? Are the parties going to have background checks done on each other? I had a program send me a match and at that time I did not have my prerequisite checklist in place. This was probably maybe about 12 years ago, 15 years ago, before I started using the checklist. And I just assumed my intended parents assumed that the program had done a background check on the gestational carrier. Turns out they had not. The program had not. And the carrier had an outstanding warrant for felony bad check writing. And as of about the fourth month of pregnancy, she was the carrier was arrested. And this was quite a surprise and shock to my clients, the intended parents. The carrier had to spend the rest of the pregnancy in prison. My clients no longer could go to the medical visits, could not be at the birth of their own child. So now we absolutely want to make sure. Have background checks been done? And if they're not being done, do the parties have jobs that require clearances or are the parties going to knowingly waive having that done? And even when they knowingly waive having that done, I still put in my contract that all the parties represent to each other, that nobody's ever been convicted of a felony or a misdemeanor other than traffic tickets, no DUIs. Nobody's ever filed for bankruptcy. Nobody's ever had a Child Protective Services charge brought against them or a founded charge made. And we put in the contract that those are material representations. We do want to make sure the parties have addressed all of the monetary issues. I have had contracts fall apart where the monetary issues were not fully explored and settled prior to the contract drafting. We already talked about determining the governing law of the contract. We talked about views on abortion and selective reduction, but also what about gamete destruction, etcetera, as between the intended parents, Do they have an agreement with regard to the embryo disposition as well? What about the proximity of the parties and the logistics? If they are not in close proximity, is the carrier willing and is her ObGyn willing to allow virtual FaceTime or micro teams visits by the intended parents? Has that been determined prior to the contract drafting? All right. So we do want to make sure that not only does the carrier have health insurance, but has her insurance been reviewed or has she gotten a coverage letter from the insurance company saying that that she the pregnancy will be covered and we don't have to worry about there being, you know, non coverage because she's acting as a surrogate. Of course, there are three good companies out there at risk, new life or international fertility insurance that the parties can look to getting coverage under the Affordable Care Act. I would note that coverage under Medicaid is problematic because any payments to the carrier easily can disqualify her from being eligible for her Medicaid unless it's a compassionate or quasi compassionate arrangement. I'm going to talk about Tricare. Some folks think that Tricare can't be used for pregnancy. I would disagree with that. I've had many, many arrangements where Tricare has covered the carrier, but you have got to follow Tricare specific language. So Tricare will cover a surrogacy for a beneficiary who has a contractual arrangement. And the language that Tricare uses says where the intended the Tricare will pay. Second, after the surrogate mother first seeks reimbursement from the adoptive parents. And there needs to be an amount designated for medical expenses under the contract and that must be exhausted before Tricare will cover other covered benefits for the surrogate mother. So what is all that crazy language mean, including the term adoptive parents, which clearly is is better would be better worded to say intended parents. But it simply means that we need to put an allowance in the contract for Tricare. And so the Tricare policy says that the contract doesn't specify a reasonable amount for the medical expenses. Then the surrogate mother is going to pay the reasonable amount. And so we just simply have to put what a reasonable amount is in the contract. If you look at the actual allowable charges by Tricare, and since I have a personal injury practice and we use these lean amounts in my practice, I'm very familiar with Tricare allowable charges. So you simply go on the website link that I've given there and you look up what the allowable charges are by area. So it might be more the East Coast region. And if you the last time I looked, these numbers are pretty close to the current numbers for the Virginia area. But a C-section delivery, including prenatal and postnatal visits, there's an allowance of or allowable charge of $2,663.18 each. Ultrasound after the first trimester is $142.35, and the vaginal delivery was prenatal and postnatal visits. The allowable charge is $2,413.98. So I put an allowance in of $3,500, which more than covers either a vaginal delivery or C-section with the prenatal and postnatal visits, as well as several ultrasounds, probably about at least 5 or 6 ultrasounds. If you want to bump that number up to 4000 to have more cushion or you want to check also for your particular area. But 4000 will still more than amply be a reasonable amount to put in the contract. While I have continued to put these amounts in the contracts for Tricare, I have yet to have a case where Tricare has actually come back and asked for the reimbursement, but we are going to follow their language and make sure we put that allowance in. So I've given you some Tricare sample language there that you are free to use if you have a Tricare case. You also want to go ahead and look up those allowable charge amounts and make sure you print that out, give it to your your clients and make make sure you've got a copy in your file. All right. So in the contract, we want to make sure who covers the baby. We want to make it clear in the agreement that the intended parents are responsible for the baby's medical costs and it will be a material breach if they don't. And this can pose problems with intended parents who don't have health insurance, especially international intended parents. So it may be that we've got to set aside, have funds set aside in an escrow account because we want to make sure that the intended parents are the ones that are responsible for the baby's medical care. If we have intended parents that don't have health insurance or the ability to get health insurance for the child, then we do want them to consult with one of the insurance companies about a self pay negotiation, about potentially purchasing an insurance product that would assist them with the coverage, and then the three main companies that provide assistance with insurance issues in this area that I previously mentioned oftentimes will offer free webinars on this issue as well that you may want to cover. So we do want to provide resources for the carrier to get both life and disability insurance. We want to find out what's her existing coverage. If she has like $1 million in coverage already, that's probably fine. If she has no coverage or only has 100,000, then we want to look into making sure that she does have a life insurance policy. Because if something did happen to her during the pregnancy and she died, we want her family to be protected. Some folks can get life and disability insurance through an employer. Of course, the three specialty insurance programs all have that coverage. And you may want to consider if the intended parents are paying for the life insurance for the carrier. Think about making them the beneficiaries of part of the proceeds. So it may be that the carrier has a once a half $1 million policy. It might not cost that much more to bump that to a $600,000 policy and make the intended parents the beneficiaries of 100,000 of that. And then the carrier still is the beneficiary of the or her family's beneficiary of the half a million. Because if something were to happen to the carrier, we're looking at protecting the carriers family, but we're also looking at the intended parents having sunk a lot of money into the arrangement and being out of pocket, a lot of money as well. So I've included a sample provision in your materials in this PowerPoint that shows how that split would work. Also just be aware of other coverages that are available to best educate the parties, and those include a short term disability coverage, complications, coverage, hospital indemnity coverage. There are a lot of different available products out there that you want to be able to just let your your clients know about. So let's switch gears again and we're going to talk about choice of law enforcement and conflict of law and parentage issues. So we do want to look at those different options that we talked about before. Where's the birth going to take place? Could it possibly take place elsewhere? Is there potential for the carrier to move to another state, whereas the medical procedure taking place, where do the parties live? What law is going to apply? How is the court going to have enforcement power, especially personal and subject matter jurisdiction? And how will parentage be accomplished? So this is a particular concern. The enforcement power. If you're dealing with an international situation, the reality is, is that if the international intended parents have not set foot in the United States or even if they have set foot in the United States, a court in the United States is is not going to have the ability to compel those intended parents to come to the United States to pick up the child. So if we look at it, if we look at just an state intended parents, let's say you've got a carrier in. Um, in Virginia. And the parents are in California, but the intended parents have never come to Virginia. Don't plan to set foot in Virginia. And they plan to have the carrier fly to California for the the medical procedures, the screening and the embryo transfer. Um, how do we make sure that Virginia court's going to have personal and subject matter jurisdiction over those California intended parents? Well, one way is if the intended parents do come and step foot into Virginia, either to attend medical visits or to come visit the carrier. We can say that they are voluntarily subjecting themselves or submitting themselves to the personal and subject matter jurisdiction of Virginia by virtue of contracting in interstate with a gestational carrier. But it's going to be a much stronger argument for the court to have personal and subject matter jurisdiction if those intended parents have actually come and set foot in Virginia. But we do want to look at what are all the ways in which we can make sure that the court's going to have that enforcement power over somebody in another state. And then, of course, if they're in another country, we're just going to have to explain to the carrier that that is a risk of doing an arrangement with folks that are in another country. So I've included one of these far side cartoons where on the one side of the river is your Tyrannosaurus rex in his Mexican gear. And the caption says, However, there was no question that on the south side of the river, the land was ruled by the awesome Tyrannosaurus rex. So we do want to recognize that there are different laws from different states and that there are enforcement issues and subject matter and personal jurisdiction matter issues in these contracts and try to make them as enforceable as possible. If the Tyrannosaurus rex is not going to come to the land of the regular dinosaurs and cross that river, well, we've got to try to figure out how are we going to hold that Tyrannosaurus rex accountable? How are we going to have the judge in the land of the regular dinosaurs have jurisdiction over that Tyrannosaurus rex? So. We want to make sure that we set forth any and all possible grounds for the personal and subject matter jurisdiction so that we're helping that court out as best we can. And in some cases, it may be that all you have is that the intended parents are contracting with someone in that state and that may not be enough. You've got to look at your own law in your particular state on that issue. So I have included some sample language there on personal and subject matter jurisdiction. And moving on to parentage. So we do want to look at which states permit pre-birth orders by statute or common law, which states have post birth certificate amendment procedures like Virginia? Virginia. We cannot get a pre birth order. But if a previous order is obtained in another state and the child is going to be born in Virginia, then I can use our full faith and credit law to get a Virginia judge to give full faith and credit and domesticate that pre birth order from the other state. And in some cases, that might be the best thing for the parties. And we've had some crazy situations where we might have two dads that are intended parents and for one dad to be able to get the child citizenship in his home country. We may have to have a pre-birth order out of California naming him as the sole parent. And then I get that domesticated given full faith in Virginia, naming him as the sole parent. And then we get a preliminary birth certificate with just that dad. And then I have to go back and get a post birth order naming both that dad and his husband as the parents and then get a second birth certificate. So there are crazy things that we need to know in advance during the contract drafting, especially when they involve issues of the intended parents wanting to get citizenship for their child in another country. So I've included some sample contract provisions. The sample here actually involved my intended parents who were in Massachusetts. The clinic was in Virginia. The carrier lived in Florida, but was planning to move to Arizona. And so we ended up having to confer with lawyers in all the states. We did the contract under Virginia law, but we made sure it could be used in Florida to establish parentage or Arizona to establish parentage, and that we weren't going to run into any issues of running afoul of Massachusetts law either. So drafting for mishaps. We do need to think about those what ifs. So what if the carrier is hit by a drunk driver and placed on life support? So you've got this far side cartoon where the lady is explaining to the police officer and then wham, this thing just came right out of left field. And it's a massive baseball that hit her, her husband. So we do want to plan for these massive baseballs that just might come out of left field. So I've included a sample provision in here on life support for the most part. Most carriers will agree to stay on life support if the child is still viable. I've only had three contracts where the carrier said she just could not do that to her family and she would not be want to be kept on life support. And then we want to make sure that whoever's the holder of her advanced medical directive is going to follow that intent. And so if it's her spouse or partner and they're signing off on the contract, then they're automatically be agreeing that she'll be kept on life support. And but if she's got someone else, that's the holder of her advanced medical directive, like her mother or something like that, we might have to put an allowance in the contract to make sure that her advanced medical directive is consistent with the contract and says that she does want to be kept on life support if the child is still viable. I've got a more detailed provision in there for you on that life support issue with some sample language. All right, so then what about another what if who owns the case against the drunk driver or other third party? What if there's third party negligence? What if there's a medical malpractice case? And I had this issue come up where the carrier got pregnant and she had a regular pregnancy, and then it looked like she had an ectopic pregnancy, they transferred two embryos. It looked like one of the embryos was was in her fallopian tube. It was misdiagnosed as a tubal ligation. And we ended up having to look into the issue of who owned the cause of action. And one of the things we came up with was tortious interference with contractual relations. If the medical provider knew about the arrangement and then misdiagnosed. But in some cases, there may not be a direct claim, like, for example, against a drunk driver that only the carrier will have that cause of action and the ability to bring that cause of action. But the intended parents, if the carrier is hit by a drunk driver and loses the pregnancy, the entire parents have lost out. So I've got a sample provision that says that the gestational carrier agrees to let the intended parents share in that cause of action as long as they help with the advanced costs in that case. So talking about different what if scenarios in this far side cartoon, you've got the the passenger spouse who's looking at the map of nowhere and they're entering the middle of nowhere. And she's saying, well, this is just going from bad to worse. And of course, when we're thinking about these morbid scenarios, sometimes they can go from bad to worse. But I've got some third party negligence language in your materials that you're welcome to steal. And there's two slides on that on how that third party negligence language works. All right. So another bad one if is what if the Internet parents divorce or separate in Virginia? I'm going to have difficulty getting them both named as the parents if they divorce, unless they've used both their egg and their sperm. So typically, my contract will say that they're allowed to separate, but they can't divorce. And then there might be issues, too, with regard to the gestational carrier and the husband of the gestational carrier, not as much of a problem as the intended parents. But we do want to indicate in the contract whether or not it is okay for any of the parties to divorce and are we going to have issues if they do so, Divorce. What about death and embryo ownership? We do. I did mention earlier on that we do want to have a separate embryo disposition agreement between as to the intended parents. There's more and more case law on that issue. And in fact, I wrote an article about this, this issue being a continued problem. And probably about a week or two ago, I had a situation where my clients contacted me and the clinic document, they were they were in the process of forming their embryos. And the clinic document said that should they divorce that the embryos would be divided as per the the court divorce order or their their separation agreement. And it was like, wait a minute, shouldn't we be deciding this now while you're forming your embryos? Like if you die, if you divorce, whatever, who's going to get them? And then you want to make sure that your surrogacy contracts consistent with any sort of embryo disposition document as well. So I've got some sample language there. If the intended parents die, what's going to happen to the surrogacy arrangement? What's going to happen with the embryos? And basically, if both of them die prior to the embryo transfer procedure, then the contract's just going to terminate if one of them dies. But the surviving parent wants to go forward, then typically they'll go forward. And then if one of them dies during the arrangement while the carrier is pregnant, then the surviving parent is going to be the sole legal parent. And there might be language in there, too, that says that we might try posthumously to try to get the the parents still on the birth certificate, if that's feasible, in that state. So I've got some more sample language in there to that. What happens if both intended parents die after the carrier is pregnant? We do want to make sure that the intended parents puts their estate documents in place. And we also want to make sure they named their first choice of guardian and second choice of guardian in the contract. So I mentioned early on in the presentation that I was consulted in a case last year where the intended father committed suicide. They the contract that had been done made no mention of who his guardian or backup guardian would be. And the program was kind of in a panic because the gestational carrier didn't know who was going to take the baby. And so they needed to track down the intended father's family members and figure out, okay, where is his obituary? Who are the family members? Who's going to who's the executor of his estate? Who is going to be taking this child? So we want to have the names of the guardians, their contact information in the contract. And then we want to also require that the intended parents actually put their trust and will documents in place, naming the Guardian and for the child and also the trustee and backup trustee who will honor the financial arrangement with the gestational carrier. So I've got some sample language in there in that regard. I like to have the documents in place by the fourth week of a confirmed pregnancy. Some of my colleagues would argue they should have the estate documents in place at the time of the contract signing. But these contracts and these arrangements do tend to be pretty expensive for folks. So cut them a little bit of grace period to wait until there's actually a pregnancy and then just give them about four weeks to go ahead and get those documents in place. Just to kind of give them a little bit of a break. But actually, pregnant is pregnant. So once the carrier is pregnant, these documents should be in place as soon as possible. All right. Since, of course, the Covid pandemic, we started adding provisions to the contracts about the carriers compliance with all precautionary CDC and who measures. And we also started to add force majeure provisions to address clinic shutdowns and unforeseen and unanticipated delays. So those provisions are now common in all gestational carrier agreements. You've got this far side cartoon, and it's one of those snowglobe balls. There's a big hand coming down on the SnowGlobe ball, and the guy inside the SnowGlobe ball is saying, Dang, get inside. All blizzards are coming. And so we do want to address these unforeseen possibilities that can happen by having a force majeure provision. And I've included a sample contract there, including acts of God and acts of civil or military authority. Floods, explosions, earthquakes. Et cetera. In there. So let's talk a little bit about drafting for breaches and for remedies. The we do want to address the sufficiency and the nature of the breach. We want to distinguish between a material breach and a non material breach. Talk about what the damages are and the remedies. Well, attorney fees and costs because they potentially be awarded with specific performance be appropriate. And then let's talk about mediation versus arbitration versus counseling. So breach provisions, first of all, should be enforceable and. So it's important to make, you know, make it clear that the damage or the the remedy and damage provisions have to be proportionate to the nature of the breach. So is it reasonable to think that a judge is going to require the carrier to keep the genetic child of the intended parents because she exercised her her? It's not really a constitutional right anymore since the Dobbs decision, but let's call it her autonomous right to not abort. I don't see any judge saying that the carrier has to keep the intended parents genetic child because she refused to abort the child. But I continue to see that provision in contracts. But that's not going to be enforced. It's just not reasonable. Is it reasonable to think the judge is going to require the carrier to pay back the intended parents all the money that she received if she agrees to abort but then refuses and then the baby comes out fine? No. And then we've got some states like Virginia and Texas that actually say any provisions that require the carrier to abort or not abort are going to be unenforceable anyway. But we want to make sure we don't have unenforceable provisions in the contract. So is it reasonable to think a judge is going to require the carrier to pay back all the money she's got and also pay his damages to the intended parents, All the money they've spent on doctors, lawyers, insurance, storage of their embryos, etcetera, because she simply had one glass of wine and the baby turned out fine. No, that's that's not a reasonable remedy in light of the nature of the breach. So one area to look to is the law of liquidated damages. This is a because a lot of these contracts equate the damage provision, the basically. To liquidated damages. So when we say that a carrier has to repay all of these amounts, that's like a liquidated damage amount. And so if we look at the law of liquidated damages, that law tells us that if a stipulated sum is basically a penalty in light in proportion to the damage, then it's probably not going to be enforced. So if you look at Virginia's law on liquidated damages, when there's a gross difference in the amount between the actual damage and the stipulated damages, then it's not going to be enforced. So we do want to distinguish between material and non-material breaches and make sure that the damage provision is reasonable in relation to the nature of the breach. So I've got a provision in there on material breach with regard to what happens if the carrier acts in a manner that basically harms the child. And generally it's going to we're going to show to a reasonable degree of medical probability that her behavior did result in that harm to the child. And I've got that sample provision in there for you. And then I've got provision for what? If the carrier fails to show up for the embryo transfer procedure or if she fails to transfer custody of the child to the intended parents. If she fails to transfer custody of the child, then that would be a specific performance remedy. Asking the court to mandate that she turn the child over. If she misses the embryo transfer procedure, she's got a reasonable, justifiable excuse. And we simply say that she's not going to be in breach and that as long as she appears at the rescheduled procedure. But then if she doesn't appear the second time or she doesn't have a reasonable excuse, then she might be in breach. But then the damages should be tied to whatever is reasonable in relation to that breach. So I've got a sample provision in there for you for the remedies for a material breach by a carrier. And then I've got some sample provisions on what if there's a minor breach and then we've got notice and cure provisions. So a couple of things to think about. What if the carrier carries a healthy child to term and refuses to selectively reduce the other child that's determined to say have Down syndrome? I've seen contracts that say she doesn't get paid at all because she's refused to reduce the one child. A judge is probably going to say she's still entitled to her remuneration or whatever because she's still carrying at least one healthy child for the intended parents. And we do want to think about the Dobbs ruling and how does that impact our language in these contracts. So I've got some specific performance language in there that you can use. And then I've got that non material breach language in there for you. I've got some sample notice and cure provisions which are standard in almost any type of contract. And then I've got the dispute resolution provision. And if the parties do have a dispute, I like for them to have a joint counseling session with a counselor to try to resolve the dispute rather than going back and forth between the lawyers, I find that a joint counseling session usually can rectify the issue. You've got your remedies for breach if the intended parents breach sample in there. And then I've got the notice and cure provisions for if the intended parents are breaching and then I've got the dispute resolution provision in there if the intended parents breach. So I also have just a general provision for counseling. Sometimes it might be the intended parents are micromanaging the pregnancy and we just need somebody to kind of make sure that all the parties resolve these minor issues without getting the lawyers involved. So I've got some sample language in there that says any party may request in writing up to ten times and no more than once every two weeks that all the parties submit to a conflict counseling session by mental health counselor qualified in conflict resolution. I'm moving right along. I've also got a mediation provision in there. If the joint counseling session does not work out, then if time is not of the essence, we want the parties to try to mediate the matter instead. Why do I not like arbitration provisions? Because arbitration is all or nothing, and that's not really conducive to arrangements where a person's carrying someone else's child. Also, arbitration can be really expensive, especially through the American Arbitration Association, and it's very time consuming. We also a lot of arbitrators really will have had no experience with surrogacy. And what these arrangements really need are third party facilitators, not edicts. We need joint counselors or mediators when things go south. Yes, arbitration is private, but so is joint counseling and mediation and usually joint counseling session and or the mediation can resolve things between the parties before they have the option to go before a court. So I'm not a big on arbitration, which is basically you submit the the situation to an arbitrator and then it's the arbitrator makes a done decision and then the parties don't have the give and take where they come out with a mutual solution. I had a situation where the carrier was pregnant. She said she would get the Covid vaccine. She agreed in the contract to get the Covid vaccine. It turned out that she did not want to and she refused to get the Covid vaccine. My clients wanted to stop making payments to her, and I indicated to them, she's carrying your child. So all we're going to do is if you stop making payments is you're going to exacerbate the situation, make things much worse. And we don't know how she's going to feel then about how. What good care she's going to take of this child. So let's just forgive the fact that she's not going to get the Covid vaccine. Hope she doesn't get Covid. Hope she's okay. Continue the payments. But had they not backed down, my next step was going to be you guys need to do. Let's try to do a joint counseling session on these issues. All right. So we do want to address abortion and selective reduction issues, but we want to the key thing, because we know that a judge is not going to make a woman do something with her body that she doesn't want to do. Judge is not going to make her abort or not abort. We do want to make sure that the parties are aligned in their pro-choice versus pro-life views. And I mentioned that program match between the conservative religious career in Virginia and the Chinese intended parents and that being a mismatch. And you may want to have an internal form explaining to your clients that no judge is going to be expected to order a carrier to abort or not abort. And explain to them that that that's just. That's something we're going to be able to get a judge to do. So there is a spectrum on abortion and selective reduction. There's typically the more pro-choice carrier who will abort for any reason except for something that's maybe surgically correctable like a cleft palate versus the super pro-life carrier who may not have worked for any reason, even if the child has no meaningful chance of existence. And then there's everything in between. And we just want to make sure the parties are on the same page. Also, I have taken out any breach language in the abortion selective reduction part of the contract and left that completely silent. And I simply say these are the party's views and the parties have discussed their views extensively and is their intent to follow their expectations as set forth in the agreement. But then I've left all breach provisions out, especially given Virginia's statute that says. That any agreement to abort or not abort, it's not going to be enforceable anyway. So I've included some sample language in there on abortion and selective reduction for you. Some sample language on conferring with the doctors about the decision. I've included some sample pro-life language in there as well, and then some sample pro-choice language. And then also we want to address will the carrier travel to another state if necessary, if the intended parents cover the costs? Because it may be that in her home state, she's she's not legally able to selectively reduce or abort the child. So we want to find out in advance if she would be willing to travel. Lastly, as we finish out the program, we do want to make sure that our contracts are flexible and that addendums are not necessary. Some clients are kind of locked into how they want things to be, but I'll encourage them, Hey, look at what happens if you do need to use donor gametes or what happens if you know the first the only embryo that you have doesn't take, but then someone donates an embryo to you. Can we just make your language flexible? Because I have had clients come back and had to pay me to revise their contract or do an addendum. And some clients don't want to have their contract be flexible. But if we if we kind of explain to them that it's no harm in making the contract flexible, then they won't have to come back to us and change things later. So in the contract, we do want to allow for the intended parents to create or obtain more embryos. We also want to find out would the carrier be okay carrying an embryo that had donor parts or even a donor embryo? And we want to make sure that we map out any all possible parentage options as well. Finally, as we close out the program, please don't say that this area of the law is uncertain. We want your agreement to read that you know what the law is and the parties intend to rely upon it. And we don't want to say that the law in this area is uncertain. Unchartered, unknown, cannot predict the outcome. All that does is it invites a judge to come out with a decision that is contrary to what the parties have put in there. We want to we want to say that this is what the parties intend and and the parties expect the court to enforce their intentions. And we do want to have a provision that says if there is changing or evolving law, then the parties will. If they need to amend the contract, they will do so. So and I've got a sample provision on that if there are any changes. Finally, let's talk about payments. We want to watch out how payments are characterized, Anything called compensation bonus for lost wages or the like could be subject to taxation by the IRS. Some states, like Virginia, don't allow compensation, which can void the contract. But. But Virginia does allow for reimbursable living and household expenses related to the pregnancy, and those are typically in line with the amounts that are paid in other states as well. I've got a sample provision on tax liability. If you're not a tax lawyer, then you want to exculpate yourself by having a provision in there that says that that, you know, the parent's attorney and the gestational carriers attorney make no representations with regard to the taxation of the payments. We also want to have a copyright provision in the contract, and that's mainly to preclude non-lawyers from using the contracts. I've had. I had a case where the the carrier came to me and said that her contract had already been written and she had matched with some intended parents I was representing. And when she sent me her contract, it was clearly one of my contracts I had written about ten years earlier. It was based on that it followed the exact same template. It had the same language, same table of contents, etcetera. And it even said, which attorney had drafted her contract, who was a colleague of mine. And I picked up the phone and that attorney said, I've never seen this contract. I've never heard of that carrier. And the contract actually had the copyright provision in it. And I told the potential surrogate, I said this this is actually my prior contract with the copyright provision, and you've violated copyright laws. So that was quite a surprise when that happened. So there are some sample copyright language. I originally borrowed that from Melissa Brisman and then made some tweaks and sent it right back to her. Just to summarize, as we close out, we want to avoid and address the ethical issues of the unlicensed practice of law. We want to start with the end in sight. We want to address in the beginning how parentage is going to be established, and we want to make sure that qualified and competent art attorneys are engaged, especially if we're dealing with international folks. We want to involve immigration and foreign counsel in those cases, and that will close out our program. Hopefully you've got some good tips, some good points. And we also will have supplemental materials to the PowerPoint as well. So adios amigos.