Navigating the relationships of clients can be one of the most challenging parts of a photographer’s work. If you are a birth, newborn, or maternity photographer, working with surrogates, first families and adoptive parents, you may have some additional opportunities to develop sound policies and ensure you are covering yourself legally.
Let’s start with some basics
Remember the things you need to consider when the subject is not the one who signs the contract. The model (in this case the pregnant woman) will need to sign a model release even if she is not the one paying for the session – for example the adoptive or (in the case of surrogacy) donor parents may, with her assent, be involved in booking and even participating in the maternity session. It’s very important for you to make sure that all parties are participating willingly.
Let’s repeat that – It should come as no surprise that a maternity session should not be coerced. The participants will need to participate of their own free will – and will need to be 18 to sign, or themselves have a parent or guardian to co-sign. If you have a birth mother, who is under 18, they will need to have a parent or legal guardian sign the model release, even where the session is organized and paid for by prospective or planned adoptive parents. See also this article on clients who are under 18.
What happens during a birth session?
Before agreeing to shoot a birth session where there is a surrogate mother, or a birth mother who is planning on having her child adopted, it may serve you well to consider whether to seek a model release from all adults involved (potentially including medical personnel), but specifically the adoptive parents and the surrogate and/or birth mother. The assent to being photographed is important in every case, but specifically in this complex and sensitive set of circumstances.
Special issues with Fresh 48 photo shoots
Why are Fresh 48 shoots potentially problematic when dealing with a surrogacy or adoption situation? In short, because parental rights will determine who has authority to sign a model release for the newborn. Indeed, a fresh 48 session may be inadvisable in some states where there are adoptive parents and a birth mother who disagree on permissions and you are unclear about who legally has capacity to provide a release for the newborn child to be photographed.
Things can get even more complicated legally when dealing with a gestational surrogate as opposed to a surrogate who has contributed genetic material – for example in the case of Florida law, a gestational surrogate is not considered to be a biological parent to the child, and accordingly has no legal right to the child following birth. This is distinguished from the case of a traditional surrogacy or “pre-planned adoption” arrangement, where a surrogate has donated genetic material because in this case either the surrogate or the intended parents may rescind the consent and terminate the adoption agreement up to 48 hours following birth.
As a photographer, you may rightly find it uncomfortable and outside the bounds of your expertise to be asking about the type of surrogacy and who is biologically involved in the situation. Because the distinctions in relation to surrogacy and legal rights vary state by state, this is definitely a topic to discuss with your attorney to make sure your model release and contracts dealing with Fresh 48 and newborn sessions address this situation adequately in terms of authority to provide the model release for the child.
Because newborn sessions are usually done when a child is at least a few days old, you might consider that the issues discussed in relation to Fresh 48 sessions don’t apply, but it is possible that the legal guardianship of the newborn child may not be fully settled. Why this is relevant to you, as a photographer, is that for an adult to have capacity to sign a model release in relation to a photo shoot where the newborn is involved, they must be a legal guardian and have authority to provide you with such a release.
Check your model release, and waivers in your contract to make sure they put the responsibility for releasing you from liability in relation to determining legal guardianship of the child.
The age of the children does not change the requirement for the model release to be signed by an individual with the legal capacity to be able to do so.
You may find that some adoptive parents will indicate that they don’t want to sign (or are unable legally to sign) the model release because the adoption is not yet finalized, even if they have legal custody of the child or children. This will often be the case when the child has been in foster care. This is because in some states it is illegal to publish the image of a child in foster care (for the protection of the child). Speak with your attorney about whether a clause giving permission once the adoption is finalized is possible in your state.
Why does all of this matter?
The legal concern is if you accept a model release for a child from someone who lacks the legal capacity to give that release to you, the release will be voidable and could, if challenged be voided by the courts. The issue would arise if the legal guardian challenges your use of the image of the child in promotion (including your portfolio) – including your social media channels – and could have a cause of action against you for using the image/likeness of the child without their permission. This could result in damages being awarded against you.
So what should you do?
I’m not recommending that you ask for proof of legal guardianship – you don’t want to put yourself in a position where you are trying to interpret legal documents for which you have no training. Instead, consult your attorney about developing additional waivers and disclaimers that you can append to a model release specifically in cases where the legal guardianship of the child might not be clear cut. You may, in consultation with your attorney, make a policy not to conduct fresh 48 sessions or birth photography for a child who is in the process of adoption without consent from the both the birth mother and the adoptive parent.
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