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   Dear Fellow Members:

    Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.


         MD Rules of Professional Conduct

Legal Ethics Hotline Volunteers ... September/October
Sam Shapiro ... 301-340-1333 ... rogah@aol.com

 

The Ethics of Surrogacy Agreements

Maryland has no statutes regulating gestational surrogacy agreements. (Gestational surrogacy refers to the transplantation of an embryo that has been created in vitro from the egg of another woman (usually the intended mother) and sperm (usually of the intended father) into the uterus of another women, who is commonly referred to as the gestational carrier.) There is limited Maryland case law on the topic and one Attorney General’s opinion, but it is instructive to examine the scant legal guidance that exists before exploring the ethics of unregulated surrogacy in Maryland and what Rules of the Maryland Attorneys’ Rules of Professional Conduct lawyers should be familiar with if confronted with surrogacy.

Two cases from the Maryland Court of Appeals deal with surrogacy agreements. In Re: Roberto d.B., 399 Md.267, 923 A.2d 115 (2007) addressed the narrow question of whether the name of a gestational surrogate mother, who contracted to have a baby for a third party, could be removed the baby’s birth certificate.  The Court of Appeals held that it could, not by discussing the legality of contracted surrogacy, but by relying on Maryland’s Equal Rights Amendment and the paternity code, contained in §5-1001, et. seq. of the Family Law Article, to extend the same rights to women to challenge maternity as applied to men to challenge paternity. In Re: Roberto d.B., supra at 284. The Court also asserted that surrogacy contracts requiring payment of money for a child (i.e., child selling) are illegal pursuant to § 3-603 of the Criminal Law Article and § 5-3B-32 of the Family Law Article. It was silent, however, on the legality of surrogacy contracts that require payment of a surrogate’s expenses but not for a surrogate’s services.

Then in 2016, the Court decided Sieglein v. Schmidt, 447 Md. 647, 136 A.3d 751 (2016), which involved a claim by a father in a divorce action that he was not obligated to pay child support for a son who was born during the marriage from in vitro fertilization (“IVF”) because he was not  genetically related to the boy. The Court pointed out that he had accompanied his wife to the fertility clinic where he had signed forms stating he had been fully advised and was under no pressure or coercion, and that he had consented to the medical procedures necessary for IVF treatment. It found IVF to be a form of artificial insemination and relied on the presumption in §1-206(b) of the Estates and Trusts Article to find that the father had consented to IVF treatment and had not overcome the presumption that he was the legal father.

A 2000 Maryland Attorney General Opinion, 85 Md. Op. Atty. Gen. 348, addressed the legality of a surrogate adoption when a fee for services is paid to the mother, indicating that in “traditional” surrogacy contracts, payment of a fee for services was illegal. According to the Opinion, “traditional” surrogacy is when the surrogate mother is artificially inseminated with the sperm of the intended father.” Id. at 1. By contrast, a “gestational surrogacy contract” is involved when “the woman is impregnated with a fertilized embryo, which may be the result of in vitro fertilization of the egg of the intended mother with the sperm of the intended father. [Or]…may involve a sperm and an egg from anonymous donors, with the result that the child has no genetic relation to either the birth mother or the intended parents.” Id., footnote 2 at 11. It explicitly distinguished traditional surrogacy from gestational surrogacy, saying “[I]t is possible that the result [illegality] would be different in a gestational surrogacy case.” Id. footnote 22 at 11. In short, the Opinion recognized and distinguished between two different kinds of surrogacy: “traditional” surrogacy and “gestational” surrogacy. Unlike traditional surrogacy, in which the woman conceives through artificial insemination with the biological father’s sperm but using her own egg, the gestational carrier is not genetically related to the baby she carries.

While Maryland law regarding gestational surrogacy contracts remains murky, Maryland courts reportedly will entertain a petition for parentage from intended parents who have contracted with a gestational carrier and will issue an order that the intended parents are the legal parents of the child after the child’s birth. (“Surrogacy Contracts Proliferate in Maryland,” DailyRecord.com, June 17, 2015, Vol. XXVII.) A quick internet search reveals many Assisted Reproductive Technology (“ART”) clinics in Maryland. In fact, half of the ART clinics in Maryland registered with the Centers for Disease Control and Prevention (“CDC”) are in Montgomery County. 

https://nccd.cdc.gov/drh_art/rdPage.aspx?rdReport=DRH_ART.ClinicsList&SubTopic=&State=MD&Zip=&Distance=50.

So, what ethics guidelines should Maryland attorneys who want to represent clients seeking gestational surrogacy agreements be aware of?  

Lawyers who represent intended parents should be familiar with the following Maryland Attorneys’ Rules of Professional Conduct: Rule 19-301.7 (Conflict of interest); Rule 19-301.1 (Competence); Rule 19-301.2 (Scope of representation); Rule 19-301.4 (Communication with the client); and Rule 19-304.3 (Dealing with unrepresented person). Lawyers who represent gestational surrogates should be familiar with the above rules and, in addition, Rule 19-301.8 (accepting compensation from one other than the client). (Subsequent references to Rules are to the Maryland Attorneys’ Rules of Professional Conduct (MARPC).)

The most salient potential conflict of interest under Rule 19-301.7[i] would be vis a vis the intended parents and the gestational carrier. In the typical gestational surrogacy agreement, the intended parents want legal custody of the child carried by the gestational carrier, who in turn wants assurances that the intended parents will pay her expenses, including legal fees. It is not difficult to imagine how their interests may differ even in the most collaborative arrangements. To avoid potential conflicts, the lawyer should not represent both. But if the lawyer refers the gestational carrier to an attorney of the lawyer’s or intended parents’ choosing who is paid by the intended parents, concerns over potential conflicts of interest and violations of Rule 19-304.1 (Truthfulness in statements to others) and Rule 19-304.4 (Respect for rights of third persons) may arise. The best practice would be to have the gestational carrier represented by separate and independent legal counsel of her own choosing. In addition to the conflict between intended parents and gestational carrier, potential conflicts may exist between the intended parents themselves. For example, if only one of them is the progenitor, i.e., the intended parents use either donor eggs or sperm from a third party and the other is a biological parent, the parties may have differing positions on who should be the legal parent or what to do with unused embryos.

A conflict of interest also arises if the lawyer represents or owns the ART clinic whose IVF services the intended parents have engaged. Under Rule 19-301.7(b), any conflicts of interest must be explained and consented to in writing by all clients.  Since these conflicts exist before representation, under Comment [3], the representation must be declined unless the attorney first obtains written, informed consent from each affected client.

Rule 19-301.1 states “An attorney shall provide competent representation to a client… [which includes] legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Gestational surrogacy agreements are lengthy and complex, and an attorney needs to be familiar with IVF procedures, medical consent forms, medical privacy laws, insurance contracts, local law, constitutional issues surrounding reproductive rights, and possibly choice of law issues. Many issues arise in drafting these contracts, such as the expenses that the intended parents will cover, who will decide the course of care during pregnancy and delivery, and what will happen in the event of death. Contracts require the gestational carrier to relinquish parental rights upon birth, but what if the intended parents fail to honor their obligation to assume legal custody of the child? These and other issues require a high degree of competency.

Rule 19-301.2(d) states “An attorney shall not counsel a client to engage, or assist a client, in conduct that the attorney knows is criminal…” Since the Court in In Re: Roberto d.B., supra at 284, asserted that surrogacy contracts requiring payment of money for a child (i.e., child selling) are illegal, the attorney must ensure that the payment provisions in the surrogacy contract do not run afoul of §3-603 of the Criminal Law Article.

Comment [5] to Rule 19-301.4(b) requires an attorney to explain all matters to give a client “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued…The guiding principle is that the attorney should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests…” This may require the lawyer to delve into the procedures of the ART client and discuss the chances of an unsuccessful outcome with the intended parent client, all of which may be adverse to the ART client. Yet another potential ethical trap may arise if the lawyer refers the intended parents to an ART clinic he or she represents. Does this constitute entering into a business transaction with a client (in this case two clients –both the intended parents and the clinic) in violation of Rule 19-301.8(a)?[ii]

Consider a much-publicized California case, which highlights the importance of disclosure, informed consent, and waivers. In C.M. v. M.C., 213 Cal. Rptr.3d 351 (Cal. Ct. App.) (2017), an intended parent and gestational surrogate entered into a 75-page IVF surrogacy contract drafted by an ARF clinic whose co-owner also served as the intended parent’s attorney. The intended parent paid another attorney to represent the surrogate. The contract had a provision giving the intended parent the right to make a “selective reduction” during the surrogate’s pregnancy, which the surrogate claims she did not review or understand. However, the contract stated that the parties were informed and understood the agreement. The contract also contained a disclosure and waiver of the potential conflict of the intended parent’s payment of the surrogate’s legal fees. When the surrogate became pregnant with triplets, the intended parent exercised his option for a selective reduction of the number of fetuses from three to two, and the surrogate refused to have an abortion. She later gave birth to triplets. (http://www.foxnews.com/health/2016/02/24/california-triplets-at-center-thorny-surrogacy-case-pro-life-debate.html).  The intended parent filed for custody in Los Angeles Superior Court and won, which was confirmed on appeal in January of this year. (Note: In California, unlike Maryland, gestational surrogacy agreements that meet statutory requirements are legal, and there is a procedure for determining parental rights when such agreements are challenged. (Cal. Fam. Code §7962 (2015).

Once the gestational surrogacy agreement is signed, the surrogate’s legal representation may end. Then Rule 19-304.3 (Dealing with unrepresented person) will come into play for the attorney representing the intended parents. Rule 19-304.3 states that “An attorney, in dealing on behalf of a client with a person who is not represented by an attorney, shall not state or imply that the attorney is disinterested. When the attorney knows or reasonably should know that the unrepresented person misunderstands the attorney’s role in the matter, the attorney shall make reasonable efforts to correct the misunderstanding.” Comment [2] to Rule 19-304.3 states that “An attorney should not give legal advice to an unrepresented person…if the attorney knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” Thus, Comment [2] distinguishes from circumstances in which the unrepresented person’s interests are not in conflict with the client’s. However, Comment [2] further states that “Whether the attorney is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.” Potential conflicts of interest may arise in seemingly collaborative relationships, so caution should be exercised when giving any advice to an unrepresented person.

While the ethics rules discussed in the preceding paragraphs apply equally to representation of gestational carriers, lawyers representing them have additional ethical challenges. The payment by the intended parents of legal fees incurred by the gestational carrier and her spouse or partner invokes Rule 19-301.8(f) that states “An attorney shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the attorney’s independence of professional judgment or with the attorney-client relationship; and (3) information relating to representation of a client is protected as required by Rule 19-301.6 (1.6)” (Attorney-client confidentiality). Best practices may be to let the surrogate find an independent attorney of her own choosing, rather than refer her to an attorney recommended by the intended parents or their attorney.

Rule 19-301.2(c) states “An attorney may limit the scope of the representation in accordance with applicable Maryland Rules if (1) the limitation is reasonable under the circumstances, (2) the client gives informed consent, and (3) the scope and limitations of any representation …are clearly set forth in a writing…” Rule 19-301.2 comes into play if representation of the carrier is limited to a review of the surrogacy agreement prepared by the intended parents’ attorney. Comment [7] states “Although this Rule affords the attorney and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances.” As stated above, the attorney representing the intended parents will petition a Maryland court after the surrogacy contract is signed, asking the court to adjudge them the legal parents of the child after birth. The court, at its discretion, may require a hearing. Is it “reasonable under the circumstances” to represent the surrogate until a birth order is entered, or it is “reasonable” to limit the scope of representation to a review of the surrogacy agreement? Limited scope representation is relatively new in Maryland, and there is little guidance as to what is “reasonable under the circumstances.”

In Maryland’s uncharted waters, the surrogacy agreement itself may give rise to ethical issues. Concerning the compensable expenses of the surrogate carrier, the only certainty is that a fee for services is considered baby-selling and, not only unethical, but illegal in Maryland. One question might be, how far can a contract go in payment of a surrogate’s expenses without raising eyebrows that the expense are fees for services in disguise?

Legislation to regulate gestational surrogacy agreements in Maryland and define the rights and obligations of gestational carriers and intended parents was proposed in 2013 and 2015. Both attempts failed. Had it passed, the legislation would have created Sections 5-901through 5-914 of the Family Law Article, entitled the “Maryland Collaborative Reproduction Act.” The bill would have required, among other things, that the gestational carrier be at least 21 years old, have already given birth to at least one child, have undergone a medical and psychological evaluation, and be represented by a licensed attorney who is independent of the intended parents, and that the intended parent must also be at least 21 years old, have undergone a medical and psychological evaluation, be represented by a licensed attorney, and have guaranteed payment of all reasonable medical and ancillary expenses.” http://mgaleg.maryland.gov/2015RS/bills/sb/sb0273F.pdf.

Between 1999 and 2013, 18,400 infants were born in the United States to gestational carriers, and the rate of ART cycles using a gestational carrier increased from 1% to 2.5%. https://www.cdc.gov/art/key-findings/gestational-carriers.html These estimates include only clinics who report to the CDC, and the real number may be higher. A Maryland physician testified before the Maryland legislature in 2013 that an estimated 200 babies were born each year in Maryland through gestational surrogacy. http://www.senatordeloreskelley.org/news/16/Proposed-law-would-govern-surrogate-births. Birth through surrogacy seems to be a growing industry in Maryland, but should it be regulated? The powerful Maryland Catholic Conference voiced serious opposition to the Maryland Collaborative Reproduction Act when it was introduced in the Maryland legislature, objecting to what it termed “commercial surrogacy.” (See http://www.mdcathcon.org/house-maryland-collaborative-reproduction-act?journal=670) True, enacting a collaborative reproductive act in Maryland would legalize gestational surrogacy in Maryland as long as the legislated guidelines are followed,  but it would also put to rest at least some of the ethical quandaries that attorneys and clients now face.

A look at the regulation of surrogacy in other jurisdictions for guidance is more interesting than instructive, for one is confronted by widely divergent approaches. Here is a sampling: In the District of Columbia, as of April 7, 2017, gestational surrogacy is legal with passage of the Collaborative Reproduction Amendment Act, (http://lims.dccouncil.us/Legislation/B21-0016), but before that, it was banned and carried up to a $10,000 fine and one year in jail, or both. (D.C. Code §16-402(a)-(b) (2001.) And in Virginia, surrogacy has been allowed by statute for years; compensation for the surrogate is not allowed; and one of the parties must reside in Virginia (Va. Code Ann. §§ 20-156 to 20-165 (1997)). As for other states, on one end of the spectrum is Michigan, where surrogate parentage contracts are "void and unenforceable as contrary to public policy" and violators are subject to a $50,000 fine and up to five years in prison. (Mich. Comp. Laws §722.851 (2009). In New York, surrogacy was recently legalized with passage of the Child-Parent Security Act (Assembly. Bill 4319 and 2017 NY S.B. 17), but before that, surrogacy in New York was contrary to public policy. On the other end of the spectrum, California legalized gestational surrogacy in January 2013 with the passage of California Assembly Bill 1217. (West’s Ann. Cal. Fam. Code §7960 et. seq. (2016). In other states that allow surrogacy, there is a great deal of variation in the methods to establish legal parentage. (See Richard F. Storrow, Surrogacy American Style, in SURROGACY, LAW, AND HUMAN RIGHTS 191, 200 (Paula Gerber & Katie O’Byrne, eds., 2015).)

While the legality of surrogacy may not be addressed by statute in Maryland, the ethical issues still abound. And with the repeated defeat of legislation, it is uncertain whether a regulatory approach will ever be taken. While legislation implicitly would legitimize gestational surrogacy contracts in Maryland on the one hand, carefully drafted legislation would also permit only individuals who conformed to the law to become intended parents or surrogates, would require certain terms be included and would elevate surrogacy contracts beyond freedom of contract principles, and would give the state a clear hand in shaping public policy and enforcement of gestational surrogacy agreements.


[i] Rule 19-301.7 states that “[A]n attorney shall not represent a client if the representation involves a conflict of interest.  A conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney’s responsibilities to another client…”

[ii] Rule 19-301.8(a) states that “An attorney shall not enter into a business transaction with a client unless: (1) “the transaction and terms … are fair and reasonable” and “fully disclosed” and “in writing”; (2) “the client is advised in writing of the desirability of seeking…independent legal advice”; and (3) the client gives “informed consent, in a writing…”

Judith A. Mustille

 

.

Co-Chairs

P. David Gavin
Allen J. Katz

Samuel M. Shapiro

 

   Committee
   Meetings

October 19, 2017
November 16, 2017
December 21, 2017
January 18, 2018
February 15, 2018
March 15, 2018
April 19, 2018
May 17, 2018

Meetings will be held on the 3rd Thursday of the month at 4:30PM in the upstairs conference room of the Bar Association building, unless otherwise noted.