May a lawyer draft a surrogate-mother contract, and can the same lawyer represent both the surrogate and the intended parent?

Plain-English summary

The Committee was asked whether a law firm could ethically prepare, on behalf of a prospective surrogate mother, a contract for future discussions with a childless couple. Assuming the proposed contract is not illegal, the opinion concluded that no ethical rule prohibits an attorney from preparing such an agreement. DR 7-102(A)(7) bars a lawyer from counseling or assisting a client in conduct the lawyer knows to be illegal or fraudulent, so if the lawyer determines the contract is illegal, the lawyer must refuse to draft it. Here the firm had concluded the contract was not illegal, though a court might find it voidable or unenforceable, and the opinion noted the Code does not prohibit drafting a contract that might be held voidable or unenforceable, provided the attorney advises the client of the particular risks involved.

The opinion drew on Association of the Bar of the City of New York Opinion 81-67, which addressed a similar arrangement (there, the client was the prospective father) and likewise concluded, citing DR 7-102(A)(7), that nothing prohibited drafting such a contract so long as the firm advised the client of the risk that it might not be enforced or might be voided by the surrogate mother, and that the firm should advise the surrogate to seek separate counsel given her potentially adverse interest (citing DR 7-104(A)(2)).

The opinion observed that the law on surrogate-mother contracts was nonexistent in Alaska and nonexistent or very sparse elsewhere, and that the situation carried many potential legal, public-policy, emotional, and practical problems. It concluded that, whether the attorney represents the prospective father or the prospective surrogate mother, the attorney cannot represent both parties and must advise the other party to seek separate counsel, as required by DR 7-104(A)(2), because a surrogate arrangement is inherently a situation with a reasonable possibility of a conflict developing between the parties.

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The law governing surrogacy agreements has developed substantially since 1984 and varies by jurisdiction. Treat this page as historical context, not current guidance. Verify against current rules and current law before relying on any specific point mentioned here.

Common questions

Q: May a lawyer draft a surrogate-mother contract?

A: The opinion concluded that, assuming the contract is not illegal, no ethical rule prohibits drafting it, even if a court might later find it voidable or unenforceable, provided the lawyer advises the client of the particular risks.

Q: What if the lawyer concludes the contract would be illegal?

A: The opinion concluded that under DR 7-102(A)(7) the lawyer must refuse to participate in drafting a contract the lawyer knows to be illegal or fraudulent.

Q: Can the same lawyer represent both the surrogate and the intended parent?

A: The opinion concluded the lawyer cannot represent both parties and must advise the other, unrepresented party to seek separate counsel, because the arrangement carries a reasonable possibility of conflict (DR 7-104(A)(2)).

Background and rules framework

The opinion applied the former Code's rule against assisting illegal or fraudulent conduct (DR 7-102(A)(7), the subject now treated by Model Rule 1.2(d)) and its limit on advising an unrepresented person with potentially adverse interests (DR 7-104(A)(2), now treated by Model Rule 4.3). It relied on Association of the Bar of the City of New York Opinion 81-67 as persuasive authority on a similar arrangement.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 7-102(A)(7) (not assisting illegal or fraudulent conduct) (cf. Model Rule 1.2(d))
• DR 7-104(A)(2) (advising an unrepresented person with adverse interests) (cf. Model Rule 4.3)

Other opinions cited:

• Association of the Bar of the City of New York Opinion 81-67: drafting a surrogate-mother contract is permissible with risk disclosure and advice to seek separate counsel

See also

• Alaska Ethics Op. 88-2: Avoiding Consent Under a Due-on-Sale Clause
• Alaska Ethics Op. 96-2: Disclosing a Due-on-Sale Clause to the Buyer
• Alaska Ethics Op. 91-3: Representing Parents and Child

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-4.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 84-4
Propriety of Attorney Drafting a "Surrogate Mother" Contract.
A law firm has been approached by a female client who wishes to be a
surrogate mother for a childless couple. The firm has been requested to
prepare, on behalf of the surrogate mother, a contract to be available for future
discussions between the parties.
The law firm has asked whether it is ethically proper to prepare a
contract for the surrogate mother. Assuming that the proposed contact is not
illegal, the Ethics Committee concludes that no ethical rule prohibits an
attorney from preparing such an agreement.
DR 7-102(A)(7) states that a lawyer shall not "counsel or assist his client
in conduct that the lawyer knows to be illegal or fraudulent." Thus, if the
lawyer determines that the contract is illegal, then the lawyer must refuse to
participate in drafting the contract. In this case, the law firm has concluded
that the contract is not illegal, but may be found by a court to be voidable or
unenforceable. The Code of Professional Responsibility does not prohibit an
attorney from drafting a contract which might be held voidable or
unenforceable, provided that the attorney advises the client of the particular
risks involved in the particular contract that is being drafted.
Ethics Opinion No. 81-67 of the Association of the Bar of the City of New
York deals with a similar situation. In that opinion, the client of the law firm
was the prospective father, rather than the prospective surrogate mother. The
proposed contract provided for artificial insemination of the surrogate mother
by the client, and, if pregnancy and birth ensued, the surrogate mother would
deliver the child to the client and his spouse, and would forfeit all rights with
regard to the child. The Association of the Bar of the City of New York, also
citing DR 7-102 (A)(7), concluded that nothing prohibits the law firm from
drafting such a contract, as long as the firm advises the client of the risks that
the contract might not be enforced or might be voided by the prospective
surrogate mother. This opinion also pointed out that the law firm should advise
the prospective surrogate mother to seek separate counsel, for it appears that
she may have an actual or potentially adverse interest to the firm's client, citing
DR 7-104 (A)(2).
The law with respect to surrogate mother contracts is nonexistent in
Alaska, and nonexistent or very sparse in other jurisdictions. Additionally, this
situation is fraught with many potential legal, public policy, emotional and
practical problems. Regardless of whether the attorney represents the
prospective father or the prospective surrogate mother, the attorney cannot
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represent both parties, and must advise the other party to seek separate
counsel. Such an approach is mandated by DR 7-104(A)(2), which states:
"During the course of his representation of a client a lawyer shall not give advice
to a person who is not represented by a lawyer, other than the advice to secure
counsel, if the interests of such person are or have a reasonable possibility of
being in conflict with the interests of his client."
A contractual arrangement to provide for a surrogate mother is
inherently a situation in which there is a reasonable possibility of a conflict
developing between the parties.
Adopted by the Alaska Bar Association Ethics Committee on May 24, 1984.
Approved by the Board of Governors on June 5, 1984.

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