Can a New York lawyer prepare surrogate parenting contracts and represent both a surrogate mother and the intermediary who arranges the match?

Plain-English summary

A lawyer proposed to serve as a public-relations and media consultant (independent of the lawyer's law practice) to an individual who acts as an intermediary between couples seeking a surrogate mother and prospective surrogates, and also to provide legal representation on surrogate parenting contracts to couples and potential surrogates the intermediary referred. The committee addressed three questions: whether the lawyer may advise on and prepare such a contract, whether the lawyer may represent both a potential surrogate and the intermediary, and whether the Code's standards reach the lawyer's related non-legal activities.

On the first question, the committee declined to opine on the legality of surrogate parenting or the validity of surrogacy contracts in New York, noting that the question was unsettled (citing In re Baby Girl L.J., which read Social Services Law section 374(6) as not expressly foreclosing surrogate arrangements and asked the Legislature to address the practice). It held that each lawyer must independently determine the legality. If the lawyer concludes the conduct is illegal, the lawyer must refuse to draft the contract or assist (DR 7-102(A)(7)). If the lawyer is satisfied it is not illegal but at most voidable or unenforceable, nothing in Canon 7 bars drafting it, provided the lawyer discusses the inherent risks with the client.

On the second question, the committee held it improper for a lawyer to represent any prospective surrogate in a contract in which an intermediary client has an interest, so long as the lawyer represents the intermediary or looks forward to further work from the intermediary. Under DR 5-105, the interests of a prospective party and an intermediary whose compensation depends on arranging the transaction are so fraught with conflict, particularly in this sensitive area, that the "obvious" adequate-representation test of DR 5-105(C) can rarely if ever be met (comparing N.Y. State 68, barring dual representation of adoptive and natural parents). Once the relationship with the intermediary ends with no prospect of renewal, the lawyer may accept referrals from the former intermediary client, subject to the bar on soliciting employment in violation of any statute or court rule (DR 2-103(A); Judiciary Law section 479). On the third question, the committee held that a lawyer is bound by the Code even in non-legal activities (DR 1-102(A)), so the lawyer may not assist illegal conduct, or represent multiple parties to a surrogacy arrangement, while acting as a public-relations or advertising consultant rather than as counsel.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (conflicts now appear at Rule 1.7, assisting illegal conduct at Rule 1.2(d), and general misconduct at Rule 8.4). New York's surrogacy law has since changed substantially, including the Child-Parent Security Act, which post-dates this opinion. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer prepare a surrogate parenting contract at all?

A: The committee held the lawyer must first determine whether the conduct is legal, declining to opine on that itself. If illegal, the lawyer must refuse; if not illegal but only voidable or unenforceable, the lawyer may draft it after discussing the risks with the client.

Q: Could the lawyer represent both the surrogate and the intermediary?

A: No. The committee held the conflict between a prospective party and an intermediary whose pay depends on arranging the deal is so great that DR 5-105(C)'s consent exception can rarely if ever be met while the lawyer represents or hopes to keep representing the intermediary.

Q: Did acting as a non-legal consultant escape the Code?

A: No. The committee held a lawyer is bound by the Code even in non-legal roles (DR 1-102(A)), so the same bars on assisting illegal conduct and on conflicted dual representation apply to work as a public-relations or advertising consultant.

Background and rules framework

The opinion applied DR 5-105 (declining or continuing employment that involves differing interests, and its consent exception), DR 7-102(A)(7) (not assisting illegal conduct), DR 1-102(A) (misconduct, reaching non-legal activity), and DR 2-103(A) (solicitation), under Canon 7 and EC 1-5. The closest current Model Rule analogues are Rule 1.7 (conflicts), Rule 1.2(d) (assisting crime or fraud), and Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest)
• MR 1.2(d) (counseling or assisting illegal conduct)
• MR 8.4 (misconduct)
• NY DR 5-105(A), (B), (G); DR 7-102(A)(7); DR 1-102(A); DR 2-103(A)

Cases:

• In re Baby Girl L.J., 132 Misc. 2d 972 (1986): Social Services Law section 374(6) does not expressly foreclose surrogate arrangements; Legislature asked to address the practice

Other opinions cited:

• N.Y. State 68 (1968): improper to represent both adoptive and natural parents in an adoption
• N.Y. State 307 (1973): a lawyer may engage in a non-law business if no rules are violated
• ABA Informal Op. 87-1523: a lawyer may not represent both adoptive and biological parents in a private adoption (absent step-parent adoption)

See also

• NY State Bar Op. 579: Representing opposing counsel in unrelated litigation
• NY State Bar Op. 589: A lawyer serving as director of a client organization
• NY State Bar Op. 580: Municipal bond counsel adverse to the municipality

Source

• Landing page: https://nysba.org/opinion-584/