The Legal Side of Surrogacy: Contracts, Rights, and What You Need to Know

Rebecca Deegan
Hi everyone, welcome to the surrogate buzz. My name is Rebecca D. Today I am with Brian Klein, one of our attorneys, and he's gonna tell us what we need to know about the legal side of surrogacy, what intended parents answer. Need to know just an informative conversation for us and for you guys to understand kind of just some legal background, maybe some questions that you might have that This will help you kind of navigate the process. So, but before we get started, don't forget to like, subscribe, hit the notification bell, and leave a comment. This definitely helps anybody who's looking into surrogacy and the information. that we're gonna provide today. So without further ado, Brian, thanks for being with us today. My pleasure, yeah. Thank you. Yeah. I feel like the legal conversation comes up quite a bit, obviously when we're meeting meeting intended parents, probably the surrogate part, like maybe when they're further down the line, but I think just kind of clearing up any questions or concerns they might have before getting into this process. And then obviously once they move along. So um, but before we kind of get into the legal side of surrogacy, what brought you to surrogacy and the legal part of surrogacy.

Brian Klein
Yeah, well it it kind of began as a a stroke of good luck in a sense. My my father was a practitioner and When I graduated from law school back in twenty eleven, I sort of got to dabble in his work and then compare and contrast that to some of the other jobs experience that I had had and just initially kind of quality of life, I I discovered that the fertility space, the the sort of environment around it, the fact that it's collaborative, the fact that you know you're ultimately helping people reach goals instead of kind of fighting and breaking things apart. It was just it just ended up being uh attractive to me and it was just kind of right place, right time. I had I had the good luck of having somebody that could bring me up on and train me and and give me the platform to to grow and I just kinda went with it. That's how it started.

Rebecca Deegan
Yeah, because your dad was attorney for Many years, right? Your whole childhood, I would assume.

Brian Klein
Yeah. Starting in I guess like he he says his first case was in nineteen eighty-seven. And you know, to be honest, when I was younger, I wasn't that interested in his work. You know, I didn't really I didn't even really know what surrogacy was until uh law school. It was like it wasn't really something that we talked about at home. I knew who a lawyer but it just wasn't it wasn't something that I think I I focused on. I just kind of lived my life I was a kid and it was just more once I got into the career and I got to see in compare and contrast what it was like to be an attorney. You know, you have this idea of what it's like, but then in practice it's of course very different than what it sounds like it's gonna be like in school. And I just found that um the the the universe of litigation didn't fit my personality style. I don't like fighting with people. I don't like the egos. I I'm I'm more of a I think I fit better with kind of project-based collaborative work and that that to me was the main driver and then it just you know it happened to be at a time where it was a growing industry and so it it availed an opportunity and you know it's been great ever since

Rebecca Deegan
I love that. I love that. So how is surrogacy law different from family law? Because did you dabble in any family law before?

Brian Klein
And no, I mean the the way my dad would always describe it was family law is anti-family law. because it's basically breaking up families, divorce, fighting, and surrogacy is building a family. It's a, it is the most intentional form of family building up. I would say probably adoption too, but it it is just a very intentional form of family building. It takes a lot of planning, it takes a lot of collaboration, it takes a team. And I think, you know, the the So there's a lot of differences because I think family law, traditional family law is a lot of litigation, whereas surrogacy law is very much just contract-based.

Rebecca Deegan
Yeah. That's a good way to put it. I never thought of it as anti family law, but um yeah, that's a good way to put it. I would say 'cause you know, obviously intended parents will come to us and be like, Oh, well I already have a an attorney or a lawyer that does family law or whatnot, and it's like, okay. I know we want to make sure that they do, you know, surrogacy law because it is in my eyes much different. So I would think you probably feel the same way.

Brian Klein
Yeah, I think it's different. It's a different personality type. It's a different skill. And just like anything, you know, we you can hire attorneys to do the work, but there's a lot of nuance in this that you you don't necessarily want the the litigator's mindset to be involved in surrogacy arrangement.

Rebecca Deegan
Well and you know you're drafting contracts for surrogacy every day. So you yourself are like, I mean this is like second nature, right? You know what benefit packages and what to put in there were I think maybe the family law piece might change that.

Brian Klein
Yeah, I mean there's there's a lot to learn. There's there's industry norms, there's insurance questions. And so if you're just jumping into anything for the first time. Um, I would say it would be ill-advised to take on a surrogacy matter without having somebody mentor you because there's just a lot that you're never gonna know.

Rebecca Deegan
Yeah Right. So surrogacy lawyer. Right. Um, so what is the biggest misconception that people have about surrogacy contracts?

Brian Klein
The biggest uh I I would say the You know, I uh maybe this isn't the biggest misconception, but I think I think a misconception about surrogacy contracts in general is that my my theme of surrogacy, I think this kind of goes into the larger my philosophy. on therrogacy is the contract is important but this is such a human process that if you view everything through the lens of a legal agreement you're gonna have a difficult arrangement because I think the contract is important because of course it lays down the foundation of the agreement. It establishes that you're gonna be the parent of the child ultimately. But if you view this transaction with this other human being being as one of a contract, then you're inevitably going to have, I think, conflict with that person because um the the imperfection of surrogacy is that it's a human process. It is just so deep Deeply human. And when when you try to approach this from an attorney's mindset or if you you just view this as like a rigid contract. I think you're going to find that it's a difficult it's a difficult lens through which to view ultimately this relationship.

Rebecca Deegan
Right, because you're taking a human and making it contractual versus a human interaction or yeah I mean there's a lot of things obviously we do this every So there's a lot of things we see that might be contractual or maybe wasn't in the contract where maybe there's a little bit of a gray area where we need to work around. But um I'm with you. I definitely see that on on the agency side where it's like contract, contract, contract. It's like, okay, but this person's also like carrying your baby and they're a person and you know, obviously they still have own their own decisions to make and things like that, but the contract is important because it says what you want and what they're gonna willing to do. But um yeah, I think that's that's hard for people just because the trust, you know, the control, like all of those things, right? They come into play when they're thinking about this process or signing a contract.

Brian Klein
Yeah, and I think what I what I mostly mean by that is of course, you know, people sign a contract, they're they're meant to comply with with the terms of the right. But if your approach is that, you know, whenever a conflict arises, you you know, you hold up a contract in someone's face and you say you're supposed to be doing this. You're gonna have a bad relationship, right? And so that's just not how people like to be dealt with, right? So there there's there's nuance to it. It's it's a process of getting to know people and getting building a relationship, building a communication style And to the best of your ability, not referencing the contract as a authority point if you don't have to, because I think there's just a lot better ways. to deal with human beings than to point out that they're violating the terms of your agreement. And of course, it's not to say that you you may not have to do that, but I think that's the when I say the biggest misconception is that this is how people view this, I'd say This is the biggest fundamental flaw, I think, of style of approaching this is that you have to in the end respect that you've got a human being on the other side. side and it's a long process. I mean you're in this for a long time and you're sometimes you have to value the relationship more than you do you know the 25 dollars that you feel like you're not supposed to pay.

Rebecca Deegan
Right. And and and it comes down to communication too, which is the biggest piece of surrogacy, um, where it's like communicate if you have a good communication with your surrogate. Obviously that's why we do a group psych session and all of these things are set up for that reason to make sure everything goes smoothly. So yeah, I think a lot of times the communication breaks and maybe that's where the contract thing may may come into play. So um so let's talk about like PBO, which is parental birth. What should Nintendo parents understand about establishing the parental rights before birth, which obviously might happen after birth as well. Just stage.

Brian Klein
Yeah. I mean so ultimately the the north star of of our process is we need to get you a court order. As the parent. We we some somehow, some way, we need a judge somewhere in some jurisdiction to recognize that you're the parent of this baby and that the sir it has no parental rights. And this all really begins at matching because there are different characteristics about matches that might have different outcomes. comes depending on where ultimately the surrogate lives and sometimes where the clinic is located or where the parents reside. So our our job is as lawyers is to help make sure that when you're matched with the surrogate, she lives in a jersey jurisdiction that's suitable for you. And then in the end what we're gonna do is, you know, in some form or fashion, we're gonna present evidence to a court that we had this agreement, that those things that were contemplated by this agreement that there was an embryo transfer took place, it worked, she's pregnant, and the only plausible explanation for the fact that she's now pregnant is that your embryo transfer was successful. successful and that you're the parent of this child. So the that will happen in a court somewhere through some process, usually just by filing paperwork. Okay. And it's done in advance of the Birth in most states. And so we call that a pre-birth order because we're getting a judge to sign off on a court order recognizing that you're the parent in advance of the child's birth. And then there are a few states where we have to wait until the baby's born in order to finalized parental rights. It typically happens very quickly, but you know, the these are just basically procedural differences and state law differences.

Rebecca Deegan
Yeah. And what's the like how much would you put on pre-birth versus pro post-birth? Because obviously this this a question comes up a lot, especially early on, right? Like, well, where's a surrogate located? Is she in a pre-birth order state or post-birth order state for intended parents who've done you know their education on that? Um, but you know, would you say that it's better, worse, neither? Like what are your thoughts around that?

Brian Klein
I don't think it really matters. I mean, unless so the caveat is about 80% of my clients are international. So sometimes we need a specific process in order for them to facilitate their return home and register the baby and have that all go smoothly. So save for that, it's not that important. It's a m I honestly it's kind of a matter of convenience. It is nice to be able to show up to a hospital. hospital and say, I am recognized as the parent of the child, it's over, we don't have to deal with lawyers. But if you zoom out a year from the birth date, you're not gonna remember that it was was a pre-birth or a post-birth order. Yeah. So what I what I advise people is find the best human being that you can to be your gestational carrier. And if she happens to live in a post-birth order state, sure, take that into consideration. But don't use that as a prefilter. Because if that's the first thing that you're you're filtering for is it has to be a pre-birth order state. state, you're missing the point. I mean the the point is you have to find a good reliable human being to partner with. And if you just if you choose these uh what are ultimately unimportant uh factors I think in in in the end as pre-filters you're gonna end up s making the pool smaller it's gonna take longer to get mashed etc. So in ultimately it's it's the the parents decision But will it impact the process in a meaningful way? No, I don't think so. It's just a matter of, I would say, inconvenience to have to deal with a lawyer one a baby's born because yeah you just want to enjoy the moment of course that's understandable but you also you know I think I think in the end um it you don't have to worry that you're not going to be recognized as the parent It's just a in the end it's procedural, right? So how you get there isn't so important as the person that you match with and the process in general.

Rebecca Deegan
And for post-both or post birth orders. Is there something put into place that says something before they're born? Obviously if they show up to the hospital that like says that they're the parents. It's just not done in a court system.

Brian Klein
Yeah I mean so obviously you have the contract you can have powers of attorney in place. or temporary guardianships so that you can have that peace of mind and you can have the documentation at the hospital. Um and then in those states where it's post-birth It's usually like a week or two.

Rebecca Deegan
Okay, that was gonna be my next question. Yeah, like what's like the time frame around that? Because I think I think it sounds scary, right? Like, oh my gosh, they're I'm not the parent until after they're born, like what's gonna happen? The surrogate's on the birth certificate, like how does this work kind of thing where um if it's not really a big deal then I think you advising like just find the great surrogate because I do tell intended parents that like you want to find the right surrogate like what if she's in Nevada and she's not in California California. Like are you, you know, would you be okay with that? And at the end of the day, it really doesn't matter. I mean, I feel like a lot of the travel piece right now is kind of happening everywhere. So, but that is a big question we get. Um, and I would say a lot of intent parents do try to stick to like post-birth order. State probably pre- Yeah, pre-birth. Yeah.

Brian Klein
Yeah, understandably. But I think I think it's just a matter of education. And it's a matter of, you know, if if you're doing research on the internet, right, you're gonna find that you're gonna be told, go to California, go to a state with statutory protections. Go to a state where it's a pre-birth order. But the I mean theoretically, yeah, that all makes sense, but you're you're missing the larger point, which is we're gonna have we're gonna match you in a state where where we have a legal pathway. And certainly you have your own risk tolerance and you have your own preferences and those are not to be discounted. But my point is take take the full picture. Don't just pre-filter for things that in the end are a minor inconvenience because that's not the main point, right? So that's that's how I view it. Is you're you're giving yourself a better chance for a better surrogacy arrangement if you're more open-minded. And then Ultimately, yeah, take take the full picture into consideration. And if something about that state makes you uncomfortable, then that's your prerogative. Move on.

Rebecca Deegan
Yeah, or talk to you about it so that you can And advise them if it's gonna be an issue or not, right? Yeah. Or a time frame issue too. Um, okay, what legal protections exist for specifically for surrogates during the process?

Brian Klein
Well, you know, the I guess the one one big misconception I think in surrogacy is that But you know the it it it doesn't get require or it doesn't get asked that much anymore, but it still gets asked. It's like does the surrogate ever want to keep the baby? Well when when I talk to surrogates, the the opposite question comes up Am I ever gonna get stuck with a baby that I didn't want?

Rebecca Deegan
Yeah, I was gonna say that's usually the question.

Brian Klein
Yeah, like I don't want the baby. Yeah, so I I always tell intended parents that the surrogate wants to be pr as protected as you do I promise you. And so I would say that is the the most fundamental important legal protection for the surrogate is that ultimately she is protected in that she is not going to be foisted on with another child that she didn't want. That's the whole purpose of this agreement is to make sure that she doesn't take on the burden of having to care for a child that she didn't intend to care for. And so that's the first. I mean aside from that, there all of the financial risks relating to the surrogacy, specifically medical insurance, et cetera, are passed on. to the intended parents through these contracts. That is just the industry standard. There's there is the parents have to buy health insurance. And then that health insurance protects them from the risk of financial loss for medical expenses. And the surrogate takes none of it. She's basically saying I'll I'll get the insurance that you're asking me to get. I'll go to the medical provider that's covered by the insurance that we both agree on. And to the extent that there are medical bills that are not paid, that's your problem. Yeah. Right. That's that's how it works.

Rebecca Deegan
Yeah.

Brian Klein
I mean there are many, but I mean the I you know I guess those are some of the key ones.

Rebecca Deegan
Yeah, those are some of the important ones that definitely come up. So what rights do surrogates like maintain during pregnancy?

Brian Klein
So this yeah I mean there are I would say fundamentally a key to surrogacy and this is gonna be be reflected in some of the statutory law, especially some of the new states that are passing laws, are making it clear that the surrogate has and maintains autonomy. over her body and her decisions. And so how that gets reflected in a contract can differ from state to state. But in the end, I mean I think that the an important lesson for everybody is that The surrogate is the patient. It is her body. She is the one that goes to the doctor and she gets to make the medical decisions that affect her health. And of course, there's a contract that gives the intended parents rights over over those decisions that impact the health of the child. But in the end, the person who has to consent to any medical procedure or any medical protocol is the surgeon. surrogate. And so the that will ultimately be within her control. The contract cannot undo that. The doctor will always view the surrogate as the patient and the person that has full autonomy over the the decision. decision making process. And then the contract outlines the guidelines through which she's supposed to um consider the intended parents' request, et cetera.

Rebecca Deegan
And what she she agrees to or doesn't agree to. Correct. But I would think that this is a conversation that probably comes up for you like, okay, well how do I guarantee that I can make decisions? decisions for my child, right? Are these I mean I would say those are pretty that would be a normal um like scary situation where an intended parent's like okay it's her body she makes a decision but we also want her to do x y and z so how do we actually do that yeah well I mean in practical terms right if if the doctor comes in

Brian Klein
And recommends a course of treatment, it is ultimately going to be the surrogate to decide, yes, I will do that, no I will not, I don't consent, or I do consent. The contract will never replace the surrogate as the the source of consent, right? So the parents can't come in and hold up their contract and say, no, no, no, this question is actually for us. This is our child. Right. So ultimately this is the this is the course of conduct that we we want to follow. So fundamentally that is a legal protection that exists in these contracts and that's that's how surrogates are protected with respect to To all of these decisions. Now, how how does that play out? I mean, I think the in the practical sense, this goes back to again the theme, which is you've got to trust the human being that you work with. Because in the end, you have a contract Yes, but the the person on the other side of that agreement um has to be on board with this process and you have to have a relationship of trust because if if you and and this comes down to matching, you have to have conversation

Rebecca Deegan
Conversations, yeah.

Brian Klein
And you know, ultimately the the the surrogate can face legal consequences for violating the agreement, but those are secondary and will come later to you know her primary right to control her body and make decisions about her health.

Rebecca Deegan
And those are constant conversations throughout the journey, right? I mean it's like, hey, what if this comes up or maybe something comes up that maybe wasn't in the agreement or maybe something you know that that nobody was expecting. So I think that's just constant conversation and just communication that you need to have with your surrogate.

Brian Klein
Yeah. Yeah, I mean th this whole like I said, I mean this whole process is a relationship. Yeah. I mean you you are trusting I mean there's really nothing like Siricy in in many ways, right? It is Absolutely It is a leap of faith, it is a relationship that you you are putting a lot of trust into a human being. And I think from from the parents' perspective, it takes a lot of bravery. It takes a lot of faith in this process and from the surrogate's response perspective you are taking on a substantial responsibility. bringing a child into the world. And in my view, you owe it to that future child to do everything that you have signed up for, right? Which is to follow your doctor's instructions and foster an environment that's gonna give this child a good chance of having a healthy life.

Rebecca Deegan
Right. And have a relationship with the parents that you're having a baby for. So it's it is. I'm I'm with you. I don't think that there's anything like surrogacy. I think it's a amazing in so many ways, but um there is a lot that goes into it that I don't think a lot of people understand.

Brian Klein
Yeah, it's I mean it's it's a really it's a spectacular display. of the human experience. It's it's relationship, it's communication, it's how you you deal with trust, it's how you deal with conflict. It it forces you to really um I think have sort of face a person. face a relationship in a way that is unlike anything else. You know, you're you are, it's not a work relationship. It's not a, it's not a business relationship. It is it is like you know it's it's I don't know, I mean there's just nothing like it to me. So it's it's hard to it's hard to define it in terms, but it's to me it's it's something that It's amazing how well it works out. It really does. I mean the the like all this is to say I think last year we had 700 plus parentage orders where we're having people having kids and yeah it's it the the process works but it it is ultimately a an exercise in trust and a a really complex process and a really complex emotional process for people.

Rebecca Deegan
I was gonna touch on that too, like the fact that we do so many cases a year and the fact that there are so many willing women out there willing to have a baby for somebody else. I mean that's really incredible. And that it does for the most part go pretty smooth.

Brian Klein
every day so we could be Yeah it it well I mean it the yeah I I think of the the women that are surrogates it's it is pretty incredible because you know ultimately there are these asymmetric Ricks risks that people take. The the surrogate is putting her family's on the line here because pregnancy is not guaranteed and she is risking her life to help this family. And Ultimately, it is it it should not be taken for granted. And then you know the parents take the asymmetric risk of the finance because ultimately they are responsible for all the costs that are associated with this this process and the uncertainty that arises. And you know I think that that that is the challenge that the parents generally face. face and you know the the the surrogates on the other hand are making this great sacrifice and you know ultimately um have this great responsibility that comes with it.

Rebecca Deegan
So to touch on kind of further about the contract with the surrogate. So obviously medical and termination clauses are a big topic. Obviously we talk about that beforehand with matching like you mentioned like these are conversations that need to be had prior to right we're not we don't want to match someone who doesn't feel the same about about these. But um so how do you like advise people or how does that come up obviously during the contract phase um to help the process go a little bit smoother? Or is there anything that comes up that you see that might affect that?

Brian Klein
I mean the the topic of termination of uh of a pregnancy is always fundamental to the matching process. So as you very well know, that that is core to finding a suitable match. You have to have people that are aligned. You have to make sure that everybody talks about this. it through everyone's on the same page. And the the way that I talk to intended parents about this is that it kind of comes back to the conversation that we had earlier, which is the surrogate is the sole source of consent. So the contract is not going to force a person to terminate a pregnancy. It is is in essence it is her decision no matter what even if it's written in the agreement and so you have to just grapple with that which is I think that That takes a moment. I think it takes a moment for people to accept that they don't have control over that. But then also to trust the process, because you know the the surrogates that go through this process will have had this conversation many times, right? They're gonna have had it with you. They're gonna have had it with their attorney, with the psychologist, with the antenna parents, maybe again in a group session.

Rebecca Deegan
Yeah.

Brian Klein
And it's not something that gets glazed over. I mean it it is, I mean fortunately, it doesn't happen that often. But when it does, you know, we we all hope and expect that it will be handled as it was contemplated by the agreement. And so you know so far in my career it always has But I think that you know the the goal in the contract is to make sure that what is written in the agreement reflects the understanding of the parties and if if there is you know during that conversation any doubt about it I always encourage them to say like uh you know the contract is is what it is but make sure that you feel comfortable with what she's saying says she's comfortable with because that's ultimately the most important thing.

Rebecca Deegan
Right. And we always state when you know they're matching, um, even on the match, obviously this is already decided based off of her profile, but But when we were meeting and we're all in a group session, you know, trying to see if the match is going to go through, it's like, hey, this is going to come up in your legal contract in a few months. And like we never want somebody to to not understand what they're agreeing to or you guys matching and then later on down the line finding out that that's not indeed the case. And you know obviously those aren't easy things to talk about. Like nobody wants to talk about terminating their child or and no surrogate wants to terminate a baby that obviously doesn't have a medical condition or whatever the reason around the termination is needed. But I think just having very clear conversations about it and just everybody understanding the process is is very helpful.

Brian Klein
Yeah, I mean that's the whole shooting match. You you really have to be on the same page. Yeah. And With all the testing and everything, obviously these things are few and far between. Right. But um I think that's that's definitely one of the challenges of of surrogacy in general is that you know ultimately I think everybody the bad thing's not gonna happen to me right that's how people go through life yeah exactly so you you really have to sit with those those difficult things and I think That's why those conversations are important and you really have to imagine if this does happen, am I gonna be comfortable with it? And I think you know the the like you said, surrogates Generally speaking, their their mindset is not that, yeah, whatever, I don't really care. I mean, of course, nobody wants to go through that experience. But I think the the framework that I hear this communicated is This may not be the decision I would make for my family, but I recognize I'm not the one that's going to carry the child and so this or I'm not the one that's going to raise the child. And so if this is what the parents want, I'm willing to do that.

Rebecca Deegan
That's that's exactly what they say. Yeah. A lot of times that's what they say. But yeah, I think you do have to take yourself as a surrogate out of that picture and say, well, yeah, obviously I have to go through this. This is my body and I have to like live with the fact that I'm terminated But like at the end of the day, this isn't, you know, years of medical issues or something that I have to live with with the child, right? Like you said, it it is very low. What is it like less than two percent or something that I think they say. And I mean we typically don't you know don't see it very often which is which is a good thing.

Brian Klein
But I would say much less than two percent, thankfully. No. I mean I've only had like less than maybe 10 in my career and 15 and we've had I've done 10,000 surgery cases.

Rebecca Deegan
So very low. Yeah, that's good to That's those are those are good percentages. Um so what's one legal mistake that you wish intended parents and surrogates avoided?

Brian Klein
It's gonna be I i it's uh well I wouldn't call it well the we'll call it w purely legal mistake would be when people get matched and they didn't talk to lawyers up front and the match is not appropriate for the state law. So this happens where it doesn't happen that much, but sometimes the agencies don't have an understanding of what they're setting up. I'm not saying this is SAI, this is, you know, there's a there's 500 agencies. Yeah. Not all of them are equal. And so they'll present a match to us. where they the parents in that state have to be married. And now everybody's understandably upset because they've spent three months and a bunch of money. And now the lawyer is saying This isn't gonna work. Do you guys want to get married? And you know, things like that will come up. So I would say fundamentally a legal mistake is make sure that before you're matched you understand the the legal process that you're about to go through in that state so that you don't set yourself up for failure. So yeah, I mean that's probably the most common thing that would happen.

Rebecca Deegan
Yeah. That's why sometimes uh if th there is something unique like that, I'm like, uh let me let me text Brian real quick and see. You know, like, hey, is this gonna work? This couple with this person, this person's genetics, because obviously the genetic piece is another add to that. Like sometimes intended parents use embryos that aren't either genetics, right? So that also plays a fact in if they can get per parentage order, right? Correct. In that state. Yeah.

Brian Klein
Yeah. I mean sometimes it could be residence, it could be marital status, it could be the genetic link. So all those things have to line up for a particular jurisdiction and you know it's a lot there's a lot of rules and so it's always a good idea to just verify with the lawyer to make sure so that you're not set back months in

Rebecca Deegan
Yeah. And so that is heavily weighted on the agency and the intended parents, right? Because the surrogate probably doesn't really know much about the legal process or if if that's gonna work or not. So would you say the same for them avoiding the mistake for the surrogate or would there be a separate one for the surrogate?

Brian Klein
I think I think the sir the challenge for the surrogates is that through no fault of their own, this is their first time going through this process. Yeah. And they oftentimes they don't know all of the things that are material to the match and so maybe you know maybe their spouse is in the military and they have they have prospective um move orders that are on the horizon and And they forgot to disclose that because you know they never even really contemplated how important their specific location was.

Rebecca Deegan
Yeah.

Brian Klein
So I think that it's a little bit trickier, maybe from the surrogate's perspective. because she she a lot of the facts about her life are important for this process and important for the match. And, you know, that could be things like her health insurance. how she has health insurance, her job, where she lives, what her future plans are, what her marital status is. So th that is gonna require, I think, the agencies guidance but not having full vetted conversations to unearth all of these potential issues um is a potential problem because you know ultimately it can impact her time and her her efforts because you know let's just imagine and this this has come up right she's she's separated and this is gonna be my question yeah so right she she in her mind she's separated But even though she hasn't lived with her ex-partner for five years, they never actually filed for a divorce. And then we say, well, is this individual gonna be willing to sign off on the documentation? And it's like, oh, I didn't I never had that conversation It's not something that I want to bring up. And so that can be an issue. So I think that those those are the I would I would I don't know if I just want to call it a mistake, but those are the things that you learn that that she wouldn't have any reason to know until she's educated on it. But those are the kinds of ultimately mistakes that affect legal.

Rebecca Deegan
So that is a very common thing that comes up, I would say, the separation thing.

Brian Klein
Yeah.

Rebecca Deegan
Um, because it is very gray where it's like, okay, I'm not divorced I'm not marr technically married, even though I am by law married, but I'm separated and I don't have a relationship with my X and we haven't been together, but nothing has been filed in the court. So how does how do you even how do you work around that?

Brian Klein
So I mean in some states In some states the law is black and white. If you are married, that person must be a party to the gestational care agreement. And so if she lives in one of those states, either he signs off on it or or or not. In other states, just depending on risk tolerances and you know, it's always best to get this individual to sign. Yeah. And that's that is I think most people's approach is that the attorneys want that individual to sign so that we we protect everybody from from future claims. So I would say for purposes of public education, that's that's the the gold standard.

Rebecca Deegan
And with a legal separation be valid if you were legally separated? I mean I would say a lot of people don't always file for legal separation, right? Like we're separated, we're gonna go through a divorce, you know, why do that? But would that work in an instance for signing a contract? without their partner on?

Brian Klein
It's I mean it's gonna be state but yeah I mean like when you're legally separated we're talking about you have a judgment entered by the court that recognizes your status as being illegally separated

Rebecca Deegan
Gotcha. Okay. So as an agency, this should be a box that should be checked and we should know prior to if it's legal or not or if we can get this person to Right.

Brian Klein
Yeah. It's the the follow-up question to I'm single is have you ever been married? And if so, have you have you finalized your divorce? And if so, do you have proof from a court that that judgment has been entered.

Rebecca Deegan
Or understand that the person you were married to is could be part of this contract.

Brian Klein
Right.

Rebecca Deegan
And know that you're getting all this money. Because I think that's probably where it comes down to is probably money situation.

Brian Klein
Yeah, I mean there well yeah I I uh certainly this individual doesn't want to be the parent of the child. Correct. But yeah the risk is that theoretically they use this pro Correct.

Rebecca Deegan
I've never seen it knock on wood, but yeah, I haven't either, but I was just curious because that does come up when matching. You know, well, is she married or has she ever been married? Or, you know, and a lot of times it comes up from the intended parents, not necessarily necessarily even the attorney, but um you know good things to know prior to getting there because like you said it's like three months down the line so nobody wants to have a med screen and a site screen and have legal fall through like at that point we're like okay yay we're getting to a transfer yeah I think I think the legal goes really well when there are

Brian Klein
No surprises. Yeah. So the more information that we know about one another and the more that all of the agreements that have been reached prior to lawyers just becomes kind of a reflection of what this document d describes. Yeah. It makes the process so much better. You know, I think I think the the way I I view our role in in a perfect setting is we're just putting into writing what you've already agreed upon. And we're we're introducing some new concepts because there's gonna be things that you just wouldn't have talked about, there are industry norms that were were reflecting in this agreement. But that makes for happy people. And you you want, you know, the the lawyer's job, I think the the intangible side of the lawyering is that that I think is personality based is Our job is to help facilitate a process that allows you to enjoy each other's match as much as you did before. before you dealt with lawyers.

Rebecca Deegan
Right.

Brian Klein
Right? Because lawyers can really mess things up. So and this is why I think the litigator's approach is not the right mindset to surrogate. Because you know certainly I could if I if I had that mindset, I could try to win everything. I could say let's do this, let's see if we can get away with this, let's change this. And then the surrogate's attorney is gonna see it and go Wow, this this contract is not industry's norms. And their your parents are asking you to accept a lot of terms that are outside of what is typical. And who's gonna get blamed? Not the lawyer, the parents are, right? The surrogate's gonna go, these parents are not treating me fairly. I why are they treating, you know, why are they asking for all these things that are not standard? And it certainly it's the parents' prerogative to make those kinds of requests. But I think the lawyer's job is to help the intended parents understand this is how it's going to be communicated to the surrogate and this is what's what she's going to what her attorney's going to tell her as the industry. standard. And so if we can help you avoid unnecessary conflict, I think we've done our job because in the end, again, like you you want to start off day zero of having signed the agreement really excited about the map And what I always find is when people make a lot of changes to the contract or when there is a surprise like, oh, by the way, I'm moving or Or you know, I I got a new job and my new job is gonna require you to pay, you know, X number of dollars in lost wages that you didn't anticipate. Those kinds of things always sour the mood and and make the starting point of this relationship. um more contentious than I think it otherwise could have been had communication been better.

Rebecca Deegan
Right. Like was this talked about prior to and if it wasn't, like I always tell intended parents even something, I mean obviously like food and nutrition nutrition and like all these things come up, right? Vitamins or vaccines. Like if you have high-level questions, just ask me before, you know, if you think it's something that like you really want during this journey or a diet or whatever it is because I am trying to make sure that when you get to legal that's what happens, right? That it's like clear and understanded and that sh this is what is expected or her or you guys have talked about this. Yes, she's willing to do this, or yeah, she's willing to get this or take this vitamin. And I think um, you know, obviously sometimes things come up as the process moves along. And maybe you just didn't talk about it. But I think even something simple just to ask like, hey, are you willing to take these vitamins? Like that's a conversation you have with your surrogate, right? So um yeah I I know like on the agencies I I we try to make sure that that obviously those surprises don't come up as well, you know. Cause sometimes you just you just don't know. But I say the legal process should be fairly quick, right? I mean reviewing and everything is pretty standard and that also goes back to choose Using a surrogacy attorney where they know the industry norms where everything is laid out and should be pretty standard.

Brian Klein
Yeah, uh for the most part. I mean I I I tend to say Show me who the the attorney is on the other side and I'll tell you how long it's gonna take. Because that that's usually how it goes, right? It's like there are some people that make this unnecessarily difficult, I think, and then there are the majority of attorneys that that understand are are not gonna make changes just because they like how it sounds better, right? It's like if it's substantive, they'll make the edit, and that's important. But we're not gonna get a contract with 50 different pages of of revisions that we now have to go through and tell ourselves a story about why is this being included? What does this mean? What are they really trying to get at here? And that's what gets complicated is that you know you're when you see a lot of changes in an agreement, you start questioning, well, what's behind that? And then you start telling yourself a bunch of stories and it just cre it creeps in a bunch of doubt.

Rebecca Deegan
100%. Yeah. 100%. So when a conflict happens mid-journey, how strong does the legal groundwork around that like outcome?

Brian Klein
I mean my my advice to everybody that is beginning the process is I say To the degree that you can avoid including the attorneys, you should. Because, first of all, the surrogate's attorney only probably met her once. Or twice. They don't have a rapport with her. They don't have a relationship. Understand the agreement and I'm not saying you know despite their their best wishes and best efforts, they just don't have the same relationship that the agency does. The agency knows this girl, right? They've been with her, she trusts the agency. And so the agency is in a much better position to mediate these kinds of conflicts because they have the they they're in the position to be able to say, I think you're doing this wrong and I think you're doing this wrong. And so that's a much better way of reaching resolution than it is to have two lawyers who now owe a duty to their client to advocate for their best interest.

Rebecca Deegan
For something that might not be as big of a legal issue, potentially. Right.

Brian Klein
Something that's not as big of a legal issue. But it when because lawyers by by definition have a duty to their client. client. And so that means they're giving the most charitable argument that they can based on the facts, which does not yield good results. Because now I'm I'm twisting words, they're twisting words, and we're we're trying to make it sound exactly like my client wants it to sound to be be as favorable to them and now it just increases the the the hostility basically so the that's my first piece of advice is Use your agency as a mediator because they have the best relationship with all of the parties in this process and that is much better at managing most issues. Now as far as Uh if if it has to escalate to the attorneys, then you know the you know m most of the issues are about is this money owed? Like that's the kind of questions that we typically Mostly money. Yeah, I mean the majority of the the disputes are about, you know, I I'm being asked to pay lost wages and I think that th th there should be better efforts to mitigate the the amount that I I'm supposed to pay or things like that and what are my rights. And so, you know, sometimes we have to go there and we get into conversations, but you know, ultimately the the lawyer's role is to help advise and guide. And my mindset is like I said, always keeping the relationship in mind. And so I'm understanding that we have an agreement and you want the outcome that you want, but let's also consider uh how our communications are potentially gonna impact the relationship because in the end wouldn't it be n I mean I I would think wouldn't it be nice to have A warm welcoming environment in the delivery room where everybody likes each other and gets along and it wasn't really worth fighting over 500 bucks. You know, I mean maybe, maybe, maybe to you it is. And I think it's a personality thing. And you know, I I've over the years maybe been just softened a bit on these things, I suppose, but I I think that sometimes you're better off Taking taking a loss in your mind and preserving the relationship. But that's everyone's you know, everyone's different. Everyone's own journey to take.

Rebecca Deegan
Yeah. I would agree with that. with the that I feel like, you know, 'cause it all comes down to the baby being born, right? And like what you envision and like you wanna be there and it you want it to be out happy situation you know is it worth it i i feel i feel like is it worth it is is probably a question that comes up a lot honestly because it it sometimes it does seem very menial like okay 500 bucks 500 bucks doesn't seem like a lot lot when you're spending the amount of money for surrogacy, but yeah, everyone's different.

Brian Klein
Yeah, I mean of course it's easy to spend somebody else's money and I I understand that. But yeah, I mean I'll I I tend to find that most of the disputes are are uh surrounding around money and it's not always to say yeah yeah just like pay to make the problem go away but sometimes the answer is is you know the question is is it worth it yeah do you do you just want to bet on this one and ask the agency to maybe in the future to have your back or prevent this kind of thing from arising again, but let this one go in in preservation of the relationship. Yeah. Or in furtherance of preservation.

Rebecca Deegan
Right. And a lot of that comes down to the contractual exhibit A for what is due to the surrogate and maybe that, you know, obviously that's usually what's put into place with obviously the trust account and whatnot. But you know, sometimes it gets gray. You know, that's where you reach out and say, hey, are you willing to do this? Or hey, this changed. Those are all just obviously conversations. But when somebody's being charged and not being communicated with, I think that probably is probably where that comes from.

Brian Klein
Yeah. I mean most of it's black and white, right? So it's not to undermine it, like the most of the financial terms are black and white. But there are there are certain things where we have to defer to doctors, for example, to determine whether a person is eligible to recover loss. wages and sometimes the parents disagree or sometimes the parents feel like you know there's there's um bad faith in it or whatever. And so like, you know, do you want to pick that fight? If do you want to accuse the surrogate of bad faith? And if you do, then you know, this is the path that we have to go down. But it it's at that point the relationship's done. Right. As soon as you tell somebody, I don't trust you, I think you're you're taking wages that you You shouldn't just just understand that you're you're torpedoing torpedoing the good faith and there's not going to be a warm, fuzzy relationship that that persists beyond that.

Rebecca Deegan
Because once you break that trust, then how do you get that back?

Brian Klein
Yeah, right. So it's it it's obviously every case is different and it's bigger. I think that's that is the theme and that that's probably what makes Um surrogacy hard is that you have these little decisions that you have to make.

Rebecca Deegan
Mm-hmm. Yeah. Where it is gray.

Brian Klein
Yeah.

Rebecca Deegan
Yeah, exactly. So if someone is about to sign a surrogacy contract, what question should they be asking asking the attorney, either on the surrogate or the IP side. And I feel like what you mentioned prior to like the surrogate isn't going most surrogates I should say are going out. They don't already know a lawyer that's going to be representing them, right? It's usually like, hey, we have these attorneys. Please choose, you know, which one you feel is best. But intended parents are usually looking for an attorney, probably prior to or maybe during the early stages. But obviously the surrogate still has questions maybe to ask like once it comes up. So Is there specific questions you would say like if you're looking at doing a surrogacy contract or if you're going to be doing surrogacy, these are the questions you should be asking up front

Brian Klein
Oh man, well there's so many things. I know. Oh, I mean the uh I think honestly the This is why the agencies are so important. Because by the time they're there by the time they've reached the attorney, there is so much that has already happened.

Rebecca Deegan
Um so it unless someone reaches out to you early on.

Brian Klein
Right. So but and and to be fair I don't think I've I can't rec recall a single situation where uh the surrogate reached out really early to say like I'm considering surrogacy I have a lot of questions about you know how to protect myself. More likely it's gonna be the parents because they're they're wanting help you know navigating agency Contracts and things like that. Yeah, I don't I don't necessarily have a great answer for that because there's just too many, but and it's it's it's a broad range of things that that that um need to be addressed. So it's probably gonna be circumstantial depend on depending on where they are in the process or or or the like. And then of course Of course, when you're reading this 50-page circuit contract, there are plenty of pertinent questions that we have to go through.

Rebecca Deegan
Yeah. So I would say like questions that are gonna come up are probably the ones like that we talked about where it's like Where should I choose my surrogate? I'm here. Like do you you know suggest one? I feel like everybody always s like says California just because we do this all the time and it just seems so easy. But um but that's I can understand that just because Because there are so many like changes and updates with law and like sometimes you don't really know. But I know sometimes intended parents like come to us and they're like, hey, I'm already working with Brian Klein's office as my attorney. I'm like, okay, cool. And but they're like just starting out their journey. So um, but maybe they had a donor or something. So, you know, obviously everybody's situation is a little different.

Brian Klein
Yeah.

Rebecca Deegan
Um, so just to kind of like wrap up, which this is great information so I appreciate it. Um but what do you wish more people understood about the legal side of surrogacy? And I think we probably touched on this in the beginning but maybe just to

Brian Klein
Yeah, I mean I think the the the biggest lesson to learn, I think the biggest thing to to prep for. is I would just say making sure that you understand your circumstances through the lens of the law so that it's not to say it has to be be a complex learning process for you. It's just that you need to know that you need to ask the question that I'm being matched with a surrogate and she lives in this state. Is that state suitable for me? Am I comfortable with the process? Am I comfortable with the laws or lack of laws in that state? Am I comfortable with the potential political situation that's going on, which is kind of a new topic for all of us? Um and so so make sure that you're educated on those points. From the very beginning so that we're not trying to correct things or correct four things once you've reached the contract process like, oh my gosh, now I want my surrogate to move to my home state because I feel more comfortable. Like that's not a good way to introduce that idea. Yeah. So that I think that would be probably the most important takeaway for intended parents and surrogates is is make sure you understand the process and you're comfortable with it before you begin this journey of matching and paying for screening and site screening and you know committing to a surrogate.

Rebecca Deegan
And knowing what you're getting into before you get started.

Brian Klein
And if you're and if you're international, how that impacts the process for you back home.

Rebecca Deegan
Right, and how to get back into your country.

Brian Klein
Yeah, correct.

Rebecca Deegan
Right. Which you guys do help with, which is great. So or you offer at least tools and ways to be able to do that.

Brian Klein
Yeah, it's just a it's adding another piece of coordination. We have now an attorney in a different country that we're coordinating with and making sure that our process in the United States follows and flows. so that when they get back home it's seamless and they they have the best opportunity to you know register their baby and be recognized as parents in their home country as well. Yeah. Cool

Rebecca Deegan
Well, Brian, thank you so much for your expertise in your communication today. We really appreciate it. I know the intended parents and the surrogates appreciate it. So thank you guys so much for joining us today on the surrogate bud. Don't forget to like, subscribe, and comment. We'll look forward to seeing you next time