Thursday, January 16, 2014

Just because you're a family lawyer doesn't mean you know about surrogacy

Several years ago I was contacted by a prospective client, I'll call her Peta, who wanted to go through surrogacy so that she and her husband could have a child. She quizzed me at some length about what I knew about surrogacy, and in particular what I had done. I won't say it was a gruelling Q and A, but it was thorough.


Each time I answered a question, I would get a cynical response, checking whether I really knew about what I was talking about.


After about 20 minutes of being checked out by Peta, she said that she would ring around the other 20 law firms named on that IVF clinic's list who said that they did surrogacy. I told her that unlike some of the other clinics that had decided a much smaller list of firms, such as my firm, this clinic had written to all the major family law firms in town and asked them whether they wanted to be on the list. The clinic had ultimately put 20 family law  firms, including mine, Harrington Family Lawyers, on the list.


And that was that. I thought I would never hear from Peta or her husband ever again. I thought: "tyre kicker". I am delighted to say that my initial impression was wrong. A few days or a week later, Peta called back. She said that she wanted me to act for her and her husband in surrogacy. I asked her what had changed her mind. She said: "I phoned all the other firms. They hadn't done surrogacy before, but were prepared to learn." Then came the refrain that I have heard from so many clients over the years contemplating undertaking surrogacy or egg donation: "But why should we pay to educate our lawyer? Why don't we just go to someone like you who knows what they're doing."


And that's the reality of surrogacy and egg donation work. It can be highly technical work, but is unlike much of the rest of family law. Just because someone is a family lawyer does not mean that they know anything about surrogacy. Engaging in property settlement disputes, or litigating about children is different to the positive, truly collaborative experience of helping intended parents make a baby. As well, the laws about surrogacy and egg donation are a maze, and most family lawyers don't know them.


Why pay to experiment? While most family lawyers know nothing about surrogacy and egg donation, I have helped hundreds of clients achieve parentage through surrogacy or egg donation. My first surrogacy case was way back in 1988!


As an illustration of my point that accredited specialist are not necessarily surrogacy lawyers, both my law partners are like me accredited family law specialists. My partner Julie Harrington like me has been an accredited family law specialist since 1996. My other partner, Bruce Provan has been accredited since 1999. However, neither of them as they readily admit, know really anything about surrogacy.


I was reminded of how being an accredited specialist in family law does not necessarily make a surrogacy lawyer recently when I saw some clients, I'll call them George and Martha who wanted to undergo a known egg donation, and wanted an egg donor agreement in place. They phoned the Law Society. They told me that they were given the names of several accredited family law specialists. When George and Martha phoned around, they were told: "Well we haven't done that before, but we are prepared to learn." You could imagine George and Martha's response: "But why should we pay to educate our lawyer? Why don't we just go to someone who knows what they're doing."


When they contacted me, I was able to put their minds at ease, because I knew what I was doing. I did not have to be educated about it.


If you are contemplating surrogacy or egg donation, give your intended lawyer the comprehensive list of questions about your problem. If they don't know what they're doing, but are prepared to learn, go to someone, like me, who does. After all, professional indemnity insurers tell lawyers that we should only act within the area of our expertise. Clients should expect nothing else.

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