Contracting For The Most Personal And Intimate Moments In Life

There is no celebrity exception to the normal rules of contracts. The basics are still required under law.

The television channel Bravo has a program called “Flipping Out,” which I admit to having watched before having kids. (Now, my options are mainly choosing between highly unrealistic shows involving talking animals or Legos, or a combo thereof.) The star of Flipping Out is Jeff Lewis, a volatile personality who “flips” real estate properties in the Los Angeles metro area. Lewis’s partner, Gage Edward, also appears on the show as a member of the property-flipping team, and you can imagine how their personal relationship mixes with their business to create awkward and funny television.

But last week, Lewis and Edward had a bad week, and it wasn’t because of any downturn in the Los Angeles real estate market. Instead, they found themselves the subject of a complaint filed in Los Angeles County by the woman who carried their child to birth. As part of Flipping Out — and consistent with its star’s general snarkiness — the show had portrayed the surrogate’s journey in sometimes unflattering ways. The suit filed by Alexandra Trent — the generous surrogate who birthed Lewis’s and Edward’s daughter, little Monroe — names as defendants Lewis and Edward, as well as Bravo Media and Authentic Entertainment.

Trent alleges that the filming of the birth — including the blurred out images of her vagina as the baby is born — were never authorized. Indeed, she says she was specifically assured that the birth itself would not be filmed or broadcast. Trent further alleges that she has suffered substantially both emotionally and, as a consequence, economically from the unauthorized broadcast of the birth. To make matters worse, Lewis himself made some crude remarks about Trent that were aired as part of the show.

Of note is the fact that the show generates its popularity and entertainment value specifically because Lewis has a streak of snarky vanity, and is often judgmental about other people. The audience, naturally, is drawn to voyeurism, because it likes to watch the train wreck. Unsurprisingly, Lewis’s remarks during the birth, and broadcast on the show, are pretty terrible. Part of the birth scene includes his quote that, “If I was a surrogate, and I had known there was going to be an audience, I probably would have waxed.” Another comment aired saying, “And that was the shocking part for Gage. I don’t think Gage had ever seen a vagina, let alone one that big.” Just reprinting those quotes in this column makes me cringe, so I can certainly understand that the surrogate is feeling betrayed by the people she carried and delivered a baby for.

All Publicity is Good Publicity

Since the complaint was filed, Lewis and Edward have very publicly expressed their horror. No, not that Lewis’s comments were made or aired. They are horrified that they are being sued! On Jeff Lewis Live — a Sirius radio program hosted by Lewis — Lewis proclaimed how he felt he was going to cry, and that “it’s the biggest form of betrayal” to be sued by his own surrogate. He also stated that he thought the comment “was kind of funny.” Describing the surrogate’s reaction to the airing of her delivery, he said that “she reached out, said she was embarrassed by that comment, and I apologized and sent flowers. I don’t think that alone warrants a multimillion-dollar lawsuit.” Lewis also noted that the surrogate signed a nondisclosure agreement, which he argued was designed to shield their daughter from this very kind of public scrutiny. (But I guess not so much of a shield that her birth wasn’t broadcast on television.)

Lewis’s response made my eyes roll so hard that they temporarily were stuck in my head. But obviously, Lewis is loving the drama. For a show on Bravo nominally about flipping houses, “all publicity is good publicity.” And obviously, Lewis and Edward are playing up their outrage at feeling “betrayed” by their surrogate.

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But how should the lawsuit against them play out on the merits?

What Did The Contract Say?

I acknowledge that by writing about the controversy, I’m giving Lewis and Edward part of what they want — more attention. But as an attorney working in the area or surrogacy, I’ll accept that consequence in order to talk about the legal issues involved in the case. Mostly, I’m confused by the lack of mention in any press reports of the actual terms of the parties’ gestational carrier agreement. That agreement generally addresses the basic understanding of the parties, as well as the worst case scenarios involved in the arrangement (like what if someone dies, what if there is something wrong with the fetus, etc.).

Under California law, both sides must be represented by independent counsel and enter into an agreement. In nearly every case, the surrogacy contract addresses the expectations of the parties for the birth itself. It is a little hard to believe that given the people involved — including a television network — that the agreement did not get into the details of who could be at the birth, whether it would be recorded, whether it could be broadcast, and the level of crude comments allowed by the parties. If the contract gave Lewis and Bravo the discretion to portray the birth however they wanted, it’s going to be hard for Trent to prevail in the lawsuit. Of course, the surrogacy contract is certain to have confidentiality provisions, and often such provisions require any suit to be filed in a manner best protecting the confidentiality of all parties. And to speculate that they wanted to be sued would be crazy talk. Right?

How Do Attorneys Address Such Intimate Moments?

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Even outside of Bravo television shows, a surrogacy contract should, of course, detail the expectations of the parties — including privacy expectations — during the pregnancy and the birth itself. Pregnancy and birth are exceedingly personal and intimate. But the intended parents will usually want as much control as possible when it comes to their child, who is, after all, inside of the surrogate’s uterus.

So we lawyers do our best. Contracts usually describe medical decisions, who can make them and in what scenarios, and when second opinions can or should be sought. Yes, it is also very common to address who will be in the delivery room, who will hold the baby after medical personnel finish their jobs, and yeah, whether photographing or videotaping is permitted.

Obviously, being a surrogate to a (minor) celebrity is a different ballgame. But there is no celebrity exception to the normal rules of contracts. The basics are still required under California law.

So I’ll wait to see that contract before weighing in on the underlying merits of the lawsuit. But regardless, I wish all of the parties a smooth resolution as soon as possible. And I hope that the lawsuit isn’t still being litigated when baby Monroe goes to kindergarten.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.