Hospital records are lost! The judge is on vacation! Our dog ate the contract! Fear not, all good lawyers have contingency plans.

Surrogacy makes people curious and sometimes wary. After all, what happens if things go wrong? In the 1980s, the Baby M case pitted absentee intended parents against a somewhat unstable biological surrogate. A decade later, the fictional TV character Phoebe carried her brother’s (and his much-older-teacher’s) triplets on the show Friends, and made many feel uncomfortable. I was dubious when watching Oprah profile IVF clinics in India who paid impoverished women substantial sums and attempted to help them buy property so their compensation would not be squandered.

When my clients ask me about what happens if things go wrong, I certainly understand. In fact, I have an FAQ sheet on hand for just these questions. However, I also remind my clients they have hired me to be their zealous advocate. Championing for their needs and protecting their interests is my job description. It is precisely why their contract is over forty pages and not ten. Making sure I help my clients avoid anything from happening (like it did with Baby M, or Phoebe, or some non-American surrogates) fuels the lengthy review calls and negotiations that take place as a contract is finalized.

But, even with the most meticulous drafting of a contract, the most timely court filings, and the most comprehensive contingency plans, life still has a way of throwing curve balls. Earthquake! Early labor! Police-shutdown of a city! Sometimes documents go missing in the mail. Sometimes hospitals lose hand-delivered judgments. Sometimes courts close early. Sometimes N.I.C.U. nurses overstep.

How do I help my clients through these crises? By de-escalating the situation. Every lawyer has preferred tactics, but one of mine is de-escalation. Rather than yell at the clerk who lost my file, I ask that clerk’s name and sympathize. In the heat of the moment it can be tempting insist on an emergency court hearing or demand to speak to a supervisor, but it only intensifies the level of fear and anxiety for everyone involved. Instead, my mantra becomes de-escalation, which allows me to effectively problem-solve. If I can calm everyone down then, with level-heads, we can work creatively together until everyone is satisfied with our new approach.

Individuals looking to hire counsel may want to consider their counsel’s preferred conflict-resolution style. Mine is certainly not wishing to see heads roll, it is helping upset individuals collaborate and find common ground.


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