Family Law

Does 'Together Together' Get Surrogacy Right, Legally Speaking?

Overall, 'Together Together' is a not-entirely-true depiction of the real world of surrogacy.

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(Image via Getty)

Movies and TV shows love to throw pregnancy and, even better, surrogacy into the mix for drama. But often they depict something nowhere near surrogacy in real life. Which, I guess, makes sense since real life can be pretty boring. However, despite my apprehension, I was excited to watch the new surrogacy-focused comedy “Together Together” starring Ed Helms, of “The Office” and “The Hangover” fame, and Patti Harrison.

Case, Er … Plot Summary

The premise of the movie is that a single man in his 40s (Matt) turns to surrogacy to have a child. Matt enters a surrogacy arrangement with a single woman (Anna) in her 20s. The arrangement has lots of awkward/funny moments, with the two ultimately developing a sweet friendship. Not a romance though, which I appreciated. Overall, it was enjoyable. Two thumbs up.

Avoiding Pitfalls

Issue-spotting pop culture for legal mistakes is a classic pastime of lawyers everywhere. But “Together Together” managed to avoid a number of the usual surrogacy tropes. Phoebe of “Friends,” for instance, is unlikely to have qualified as a surrogate, since one of the basic requirements is for the surrogate to have completed a healthy pregnancy of her own. Those states which have passed surrogacy-specific laws, such as Colorado recently, often codify this basic requirement into statute. But even when the having-your-own-baby-first requirement isn’t included in state law, the American Society of Reproductive Medicine (ASRM) includes it in its guidelines, which are followed by most fertility clinics. Sorry, Giovanni Ribisi and Debra Jo Rupp!

On the other hand, “Together Together” establishes that Anna got pregnant in high school and gave the baby up for adoption. So points for the surrogate having given birth before becoming a surrogate. Of course, the adoption part may have separately disqualified her if she had “unresolved issues with a negative reproductive event” (another ASRM guideline).

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Another good point for “Together Together” is the discussion of the egg donor (although by reference to a donor number, which is a whole other issue on anonymity and donors), but the conversation clearly indicates that this is a gestational surrogacy. Too often media defaults to “traditional” or genetic surrogacy, where the surrogate is also genetically related to the child. In the real world, genetic surrogacy is statistically fairly rare these days, with most intended parents going the gestational surrogacy route — where the surrogate has no genetic connection to the embryo, created through IVF and transferred to her uterus.

Reading The Legal Contract With Their Counselor

Both Anna and Matt get an amazing amount of joint therapy and group support in the movie. Which is awesome. But not the norm.

Despite the context not totally making sense, I did enjoy the reading of part of the surrogacy contract. Anna and Matt argue about whether she is allowed to have sex during the pregnancy. The issue comes up during a counseling session (with comedian Tig Notaro as the therapist!), and results in the therapist pulling up the contract on a computer and reading parts aloud to them.

Furthermore the surrogate agrees not to engage in strenuous or high-risk activity including but not limited to skydiving, contact sports, horseback riding, skiing, scuba diving, weightlifting, rollerblading, roller skating, skateboarding, surfing, bungy jumping, bike riding, or riding in vehicles under 3,000 lbs., including, but not limited to motorcycles, vespas/scooters, dune buggies, jet skis, Segways, jeeps, or smart cars.

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OK, lawyers, is sex allowed? And is that contract plainly absurd? Well, actually that part is totally legit. While often the surrogacy legal contract pretty much says the surrogate should do/not do whatever her doctor recommends, others have extensive lists that look and sound very much like the contract provision read in the movie. In fact, this list was likely pulled from an actual surrogacy contract.

Back To The Sex Question

Yeah, the movie likely got that wrong, essentially coming to the conclusion that it wasn’t on the list of prohibited strenuous activity and therefore might be fine, legally. However, back in the real world, the spouses and partners of surrogates also have to go through standard screening for sexually transmitted infections that could otherwise pose a danger to the surrogate or the baby. It’s highly unlikely that a contract would be silent on the issue of sex, much less allow a surrogate to hook up with a medically unscreened partner.

Overall, “Together Together” is a not-entirely-true depiction of the real world of surrogacy. But, like “My Cousin Vinny” for criminal law cases, the filmmakers did their homework (likely grabbing a copy of an actual contract and highlighting its real-life ridiculousness) and inching closer to a portrayal of the complicated and beautiful relationships forged in this world. Would recommend.

Ellen 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.

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