Family Law

Washington State Flips Its Anti-Surrogacy Stance

Washingtonians should pop the champagne bottles and celebrate -- unless you are already trying to become pregnant as a surrogate. 

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In the last few years, several countries have either banned or severely limited access to surrogacy. These laws often come on the heels of some crazy surrogacy scandals, including the Japanese man with the 13 surro-babies, or the twin baby left behind in Thailand. Fortunately, the United States has gone the other direction. Last year, Washington, D.C. reversed its prior law that actually made surrogacy a criminal offense, and instead passed a comprehensive new statute that permits and provides safeguards around surrogacy arrangements. The statute permits both the more popular type, known as gestational surrogacy — that’s where the surrogate isn’t genetically related to the child being carried — as well as the less common form of surrogacy, now called “genetic” surrogacy — previously known as “traditional” surrogacy — where the surrogate is also genetically related to the child.

Following the trend of jurisdictions named after our first president, Washington State just enacted into law a comprehensive new Uniform Parentage Act, effective January 1, 2019. While the state had previously allowed altruistic surrogacy — the type where you don’t get paid and where it’s really hard to find a very nice person willing to be pregnant for you for free — the Super Surrogacy-Friendly New Law (not its official name), eliminated the previous state ban on compensated surrogacy.

Go Washingtonians! These are two significant reversals in the last year.

ART-ists Rejoice.

I spoke with Sharon LaMothe, who is the founder of LaMothe Surrogacy Consulting, a Washington-based educational service. LaMothe has deep roots in the assisted reproductive world. She was a gestational surrogate herself, twice. Carrying twins both times! She previously ran a surrogacy-matching agency in Florida. And she writes and speaks on assisted reproductive technology issues nationally and internationally.

In contrast to the unfortunate trend overseas of governments trying to restrict surrogacy, LaMothe has been fighting for this legislative change in Washington State for the greater part of the last decade. To that end, she has testified before the state legislature in Olympia on multiple occasions. She considers the new law a major victory, and confidently expects that it “will change lives” for the better.

Local Help For Intended Parents.

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LaMothe explained that the bill was driven by a desire to help infertile couples in Washington who would otherwise be forced to seek help outside the state to grow their families. Many Washington couples, already devastated by the news of not being able to carry a child themselves, have had their anguish compounded by being told that they aren’t free to have a surrogacy arrangement in their home state. Without winning the baby lottery of having someone in their lives that would act as their surrogate without compensation, many people were forced to make arrangements with surrogates in California, or other surrogacy-friendly states. In fact, the bill’s sponsor in the Senate, Senator Jamie Pederson, together with his husband conceived four children via surrogacy in California.

Of course, there is often geographical distance between intended parents and their surrogates. But many intended parents prefer to live near their surrogates, so as to foster a closer relationship. “It’s harder to make it to appointments and be there every step of the way for someone carrying your child when they are not permitted to live in the same state as you.” The new law will give these parents flexibility when deciding who will be their surrogate. Not to mention, it will keep those dollars in the state, instead of needlessly sending them to California.

Safeguards for Surrogates. 

At the same time as the new state law gives hope for Washingtonian intended parents, the law puts into place a number of important safeguards to protect the women acting as surrogates, as well as the children born from this increasingly popular technology. The new law restricts the Evergreen State’s female residents from being gestational surrogates more than twice. (There goes making a career out of being pregnant.) While that does seem paternalistic, I prefer that limitation to an absolute ban on compensated surrogacy. It also requires that both the surrogate and the intended parents have legal representation throughout the arrangement. That also is a little paternalistic, but as someone who is a lawyer in this field, I can say that lawyerly involvement in the process generally adds value. It’s not just because I want the job security, although that doesn’t hurt.

The Opposition.

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The new law is not without its detractors. The opposition comes from many of the same players that we see around the country who argue against all forms of assisted reproductive technology. Their concerns include questions over the commodification of women and children, and the severing of a child’s delivery into the world from his or her genetic or biological parents. These are legitimate concerns for many, and they don’t have a clear-cut left/right divide. But while reasonable people can always disagree, I nearly always come down on the side of consensual contractual arrangements between well-represented and well-intentioned parties.

Indeed, Washington’s new legislation shows that a significant amount of thought was put into addressing the primary concerns with surrogacy arrangements, working to maintain a balance to protect the parties, and still allowing a woman to receive compensation for going through nine months of hard labor (pun intended) to help another family fulfill their dream of a child. For that reason, Washingtonians should pop the champagne bottles and celebrate. Unless you are already trying to become pregnant as a surrogate. Then just have some sparkling apple cider.

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.

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