Surrogacy is a highly debated and contested topic in many legislatures across the country. Despite conservative opposition based primarily on religious objections and extremely rare bad outcomes in the U.S., more and more states are proposing bills that would appropriately allow and regulate compensated surrogacy.
In fact, since the rush to ban surrogacy after a traditional surrogacy (in which the surrogate uses her own egg via artificial insemination) gone bad in 1987 (In re Baby M. New Jersey), the reality is that nearly 20 states have since allowed and/or regulated compensated surrogacy through either affirmative legislation, favorable appellate court decisions, or related laws that exempt surrogacy from adoption statutes. (Click here to see the various state laws that apply to surrogacy.)
The most recent example is a new law that covers residents of Washington, D.C. D.C. used to be one of the few remaining jurisdictions with a prohibitive surrogacy law passed many years ago relating to traditional surrogacy. The old law that D.C. had in place had potentially severe criminal penalties for parents who paid a surrogate to have child. The fine could have been as high as $10,000, accompanied by up to one year in jail.
The new law dispenses with all those penalties and is making news because of the unbiased opportunities and rights that it provides to all kinds of prospective intended parents. The law now allows all parents in D.C., married, single, heterosexual, or same sex, to enter into enforceable contracts with surrogates in D.C. instead of having to travel to different locations outside D.C. in order to get undertake the surrogacy process.
Eliminating concerns regarding parental rights
The new D.C. law also provides parents with another important benefit when using surrogacy; it makes the process of obtaining parental rights much less cumbersome. Under parentage laws that used to apply to establishing parentage through surrogacy, just as currently-existing laws that are still in effect in many other states without specific surrogacy laws, the intended parents would have to initiate adoption proceedings after their child’s birth in order to establish their rights as the child’s legal parents.
The new law allows parents the ability to obtain parental rights over the child pre-birth that go into effect immediately when the child is born to the surrogate. Their names will now be listed on the initial and only birth certificate, and there is now no need to conduct adoption proceedings after the child arrives.
Many states in the U.S. still don’t have specific laws or procedures for establishing the intended parents’ legal parentage over their child born via surrogacy; however, as more various types of parents are starting families through surrogacy, more and more states are considering laws similar to the one passed in D.C.
What you need to do if thinking of using surrogacy to start a family
If you feel that surrogacy might be an option for you, you should consult an attorney experienced with assisted reproductive law in your state. This is a crucial step that many people often overlook, and it causes them significant problems in the future.
An attorney will be able to determine which states’ laws may be selected to govern your surrogacy proceedings and which of those possible laws are most suitable. The attorney will also be able to perform a thorough review of your specific situation and help you devise a legally-valid plan that protects your rights according to your intent.
Because each state has such drastically different laws regarding surrogacy and the parental rights of parents that use surrogates, you need to make sure that you are doing everything possible to ensure you are always able to be a vital part of your child’s life.