How to Hire a Reproductive Attorney: 5 Questions to Ask
By Melissa B. Brisman, Esq., and Kelly Solloway
Conceive Magazine, Winter 2006

If you’re facing fertility challenges and turning to assisted reproductive technologies, you may need some expert legal advice. To make sure you get the best, you’ll need to do some interrogating.

Because reproductive law is still in its infancy (no pun intended!) there are still very few attorneys who specialize in this area. That’s one reason it’s especially important for any prospective parents to research the qualifications of the lawyer they’re hoping will assist them on the path to parenthood. For instance, a family law practice is substantially different from a law firm specializing in reproductive law. Firms advertising themselves as specializing in family law may be willing to take your case, but may not have the expertise to handle it as well as an attorney specializing in reproductive low. Web sites and Internet message boards can offer a wealth of information when you start your research. Once you narrow down your search, you should get answers to the following questions before retaining the services of an attorney or firm.

1.  How much experience do you have in this specific area?

Obviously your attorney’s professional experience is crucial. You’ll want to make sure your attorney has the expertise and qualifications of a reproductive attorney rather than a more general family law practitioner. The subtleties and ever-changing legislation in reproductive law mean you really need someone who specializes in this field and keeps up with all the latest developments.

But once you ascertain professional expertise, personal factors become important, too. The issues that come up in reproductive law can be quite delicate and intimate, and you need to feel comfortable with the attorney who is representing you.

Both factors need to be in place—professional qualifications and a good personality match—before you can be sure you’ve found at attorney who will give you the information and advice you need while protecting your interests and understanding your particular situation in this unsettled area of the law.

2.  Does your law firm offer any services other than “legal”?

The list of things to do when you’ve started on the road to family-building through assisted reproductive technology can seem infinte. You’ll ask yourself: How will I find and manage the money needed to pay all these people? What about my insurance? Who will coordinate all the “little things?” How can I find a gestational carrier and/or egg or sperm donor if I need one?

It goes on and on. You may wish to consider a “one-stop shopping” approach by choosing a law firm which offers all of these services, and more. By hiring this type of firm you can cut your “to do” list to a manageable size. And while the law firm offering all these services may charge more money than other firms, the cost can still be substantially less than if you were to pay for each of these jobs individually.

3.  Do you charge a flat fee or an hourly rate?

Before you sign a retainer agreement with a law firm, you should find out about the way the firm charges for its services. For instance, some attorneys work on a contingency basis—meaning they are only paid if their work is successful--but this is not appropriate in the field of reproductive law, and you should steer clear of any attorney who offers this payment option.

Most attorneys charge an hourly rate, which means you’re billed a set amount for every hour (or part of an hour) that the attorney is working for you. But since it’s nearly impossible to foresee the amount of time your case will take (especially in such a constantly changing area of the law), this arrangement means it will be virtually impossible for you to know how much your legal fees will wind up costing.

Considering all the unforeseeable expenses prospective parents encounter, it’s a great advantage to know up front what your legal fees will be. You can do that if you hire an attorney who works on a flat fee basis. When you retain an attorney for a flat fee, you can budget your legal fees in advance. Of course, there may be some additional expenses, such as court filing fees, but these are usually minimal.

4. Where are you licensed to practice law?

Attorneys must be licensed by each state to practice law there. As you will discover when you begin your search for legal advice, individual lawyers and firms in this field come from all over the country. It’s a great advantage to have an attorney who is licensed in the states relevant to your case. Your attorney should be licensed in any states in which any medical procedures are being performed. And if you’re using a “third party” (egg donor, sperm donor, surrogate/gestational carrier), you should try to have a lawyer licensed in at least one (and ideally more) of the states in which the individuals reside. Of course it would be impossible to find an attorney licensed in all 50 states, but it is important to find an attorney licensed in the state(s) where your clinic is located, where your baby will be born, where you live, where any third parties live, where the IVF procedure will take place, etc.

5. Do you have a knowledgeable and experienced support staff?

When you retain an attorney, you’re not just hiring one lawyer, but the entire law firm.  One sign of a good attorney is having a capable and confident staff who can assist you when the attorney is unavailable. Although a lawyer’s support staff can’t offer legal advice, they can ensure that all other aspects of your case are handled in a timely and professional manner. (On the other hand, a “solo practitioner” who has no office staff, or an attorney with poorly trained or inexperienced personnel, can make the entire process more difficult.) If possible, try to find out how long the employees have been working with the attorney; a high turnover rate may indicate some problems in the office itself. 

Melissa B. Brisman specializes exclusively in the field of reproductive law. Her practice is located in Park Ridge, New Jersey (www.reproductivelawyer.com), and she is licensed to practice law in Massachusetts, New Jersey, New York, and Pennsylvania.

Kelly Solloway, a paralegal trained in reproductive law, works with Melissa Brisman.