Attention D.C. Attorneys! It's Time to Switch To 'Happy Law'
This is great news for aspiring parents, would-be surrogates, and yes, attorneys.
Finally, we have good news in the world (of surrogacy). Thanks to new legislation taking effect in Washington, D.C., specifically D.C. Law 21-0255, surrogacy is now legal in the District of Columbia. Perfectly named the “Collaborative Reproduction Amendment Act,” the new law ended a ban on surrogacy that spanned more 20 years. That ban had criminalized entering a surrogacy contract — both gestational and traditional – for both the intended parents and the surrogate. Now, the new statute removes any criminal penalty and replaces the old law with a statutory scheme that protects all parties. As a result, D.C. residents — even an occupant of the White House — can legally act as a surrogate! (Between the First Lady sticking with New York and the President’s travel schedule, there might be some available space.)
A Different Direction. In contrast to D.C., a number of foreign countries have gone from having thriving surrogacy environments to eliminating, or all but eliminating, surrogacy. India, Cambodia, Nepal, and Mexico are among the countries that have recently undergone this transition. That transition obviously limits options for those hoping for a family, but who are unable to carry a child on their own. It’s encouraging to see U.S. jurisdictions moving in the opposite direction and, after careful review and thought, legalizing surrogacy with certain protections in place.
What If I’m Single Or Unrelated To The Child? D.C.’s new law allows several different types of surrogacy. Some states limit surrogacy to married couples, or require that individuals have a genetic connection to the child. But the new law in D.C. is not so limiting. The result is that hopeful parents are protected in a surrogacy arrangement, regardless of marital status and regardless of whether an intended parent is related to the surrogate-carried child.
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Protections + More Work for Attorneys. Like California and Illinois, D.C. placed protective provisions into the statute. To start, all parties must be over 21 years of age. Both the intended parents and the surrogate must consult with a mental health professional before the pregnancy. And unsurprisingly, an agreement must be entered into before attempting a pregnancy, with certain key issues addressed in the contract. Those include the parentage of child, responsibility for costs, and a dispute mechanism should a conflict arise. Most important of all, each side must be represented by independent legal counsel (yay attorneys!).
For all of you D.C. attorneys out there, this is a great area of law to practice. I like to refer to it as “Happy Law.” With this new statute and the requirement of lawyer involvement, you may want to consider expanding your practice.
More Liberal Than California. While California is considered extremely friendly to surrogacy, its statute does not address “traditional surrogacy.” Traditional surrogacy involves a woman carrying a child to whom she is also genetically related. The fertility procedure in traditional surrogacy is usually only an artificial insemination procedure, as opposed to an IVF procedure. (In a gestational carrier arrangement, a fully formed embryo, unrelated to the carrier, is transferred to the surrogate’s uterus.) Because of the obvious complications that can arise from a surrogate carrying “her own” child, many jurisdictions look less favorably upon these arrangements.
But, surprise! D.C. also now allows and specifically addresses traditional surrogacy arrangements. The law requires that the legal agreement must be in place before the surrogate undergoes an insemination. (Smart!) Again, both parties must be represented by attorneys. And, even then, the parentage of the intended parent(s) cannot be confirmed until at least two days after the birth. That contrasts with a gestational-carrier arrangement, where parentage can be—and should be, as a best practice—legally confirmed prior to birth. Presumably, this means the traditional surrogate, like a birth mom in an adoption scenario, may have the right to change her mind.
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Kudos. Diane Hinson, owner of Creative Family Connections, a surrogacy agency and law firm purposely located steps outside the D.C. border, was one of the attorneys who worked hard to change the D.C. law, and she happily changed the District from a “red light” to a “green light” jurisdiction on her firm’s state-by-state map (www.surrogacymap.com). That map is heavily relied upon in the surrogacy world. Hinson told me: “I founded Creative Family Connections on the principle that ‘everyone can build a family’.” She said, “Throughout these many years, I have eagerly awaited the day when Washington, D.C. – our nation’s capital — would finally put itself in its rightful place as a leader and protector of equal rights for all its residents in family building. That day has finally arrived.” Congratulations to Hinson and all the assisted reproductive attorneys and other professionals who worked hard to educate the D.C. lawmakers about surrogacy, and who fought to put in place a comprehensive statutory regime. Also, congratulations to all those intended parents in D.C. who now no longer have to look elsewhere in the U.S. or world to complete their families. And welcome to the women of D.C. who want to help change someone’s life by becoming a surrogate.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
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