Independent
Legal Advice

What is Independent Legal Advice?​

Generally when someone wants a contract drawn up (e.g, a donor agreement or a surrogacy agreement), that person retains a lawyer to provide legal advice and to draft the agreement.  All other parties to that agreement need their own lawyer to provide them with independent legal advice.  "Independent" legal advice is the same as "legal advice", the key and most important difference is who is providing that advice. The Law Society of Ontario has strict rules on conflict of interest and a duty of candour.  As such, the lawyer drafting the agreement gives tailored, specific advice to their client, and that same advice could be unhelpful -- for lack of a better term -- to the other party or parties to the agreement.  It would put the lawyer in an impossible situation to be able to give candid legal advice to all parties to such agreements.  That is why everyone involved should have their own lawyer providing them with legal advice. 

 

Who might need Independent Legal Advice?

• While this is not 100% true all the time, generally the intended parent(s) retain the lawyer to draft the agreement, and the other parties to the agreement obtain independent legal advice.  These individuals are often:

  • the egg donor

  • the sperm donor

  • the embryo donor(s)

  • the surrogate

  • the spouse of donor or surrogate, as the case may be

 

Is Independent Legal Advice expensive?

Generally, independent legal advice is much less expensive than the fees charged by the lawyer retained to draft the actual agreement.  That being said, the issues involved in fertility law are complex and very important.  As such, fees for providing independent legal advice can still be significant.  

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As mentioned elsewhere on this website, it is legal to reimburse a party certain expenses related to the donor agreements and surrogacy agreements.  In other words, the intended parents are generally responsible for reimbursing the legal fees incurred by the other parties.