A New Law Would Require Courts To Rule On Who Your Parents Are, Even Before You're Conceived 

This is a new approach to surrogacy birth court orders that's never been seen before.

(Image via Getty)

In Oklahoma, also known as the Sooner State, they are trying to do things … Sooner than usual.

When a gestational surrogate carries and delivers a baby for someone else, it presents a basic legal question. Who are the parents of the baby? The law generally assumes that a woman who actually delivers a baby is mother of that child. Normally, that assumption works! But with surrogacy, it doesn’t.

Not only do the intended parents want the baby, but the surrogate definitely does not want the baby. In order to make sure all of this works out legally, states have adopted a wide variety of approaches. Some states allow court orders after a surrogate baby is born, or what we call “post-birth” court orders.  Other states move up the process, and allow courts to issue “pre-birth” orders. And some other state do not require a court order at all for intended parents to be listed as the parents on the child’s birth certificate.

Last week, Oklahoma’s State Senate unanimously passed an amended bill, creating the Oklahoma Gestational Agreement Act. That bill adopted a fourth approach, and would require a “pre-conception” court order!

The original bill was passed by the Oklahoma House in March, and has now been returned to the House with the Senate amendments. If it’s repassed in the House (which is highly likely given its bipartisan support) and signed by the Governor, it is set to take effect July 1, 2019.  That’s pretty soon!

A New Approach, Never Seen Before

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In good news for surrogacy lawyers, the bill expressly permits compensated surrogacy as the public policy of Oklahoma. And in more good news for lawyers, it puts in place a number of specific requirements. These include:

  • independent legal counsel for all parties;
  • certification by a qualified physician that both parties have been advised of the risks and benefits of the medical procedures;
  • express terms of the compensation arrangement and financial liability for medical expenses;
  • express relinquishment of parental rights by the surrogate and acknowledgment of rights by the intended parents; and
  • acknowledgment that the surrogate has sole decision-making authority over her health and that of the fetus, consistent with applicable state law (this one makes sense for the surrogate’s bodily autonomy, but can be a scary proposition for the intended parents trusting her to make decisions in the best interests of their child).

But most interestingly, once the requirements are met, the validation petition and the court order must be completed prior to an embryo being transferred to the uterus of the surrogate — aka before any conception has taken place! Failure to receive court validation of the gestational carrier agreement prior to conception may render the agreement unenforceable, meaning that there could be confusion about the baby’s legal parents.

Christina Miller, an assisted reproductive technology attorney from Oklahoma who has been lobbying for the bill, talked to me about the likely new law. She noted that “Oklahoma is considering the legitimate needs of intended parents and surrogates in recognizing contracts, and providing for an innovative, streamlined approach to recognizing the parental rights of most intended parents. I look forward to final passage of the bill in this session, and working with Senator Howard and Representative Dunnington on further efforts to legitimize surrogacy in Oklahoma through the licensing and regulation of agencies to enact sensible statutory protections for parents and surrogates.”

A Waste Of Judicial Resources?

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While there are good features to the bill, one practical concern is one of costs. In most pre-birth order states, the parties do not petition for a court order of parentage until after the first trimester. This is because the sad reality is that many embryo transfers fail. And of those that don’t fail, many pregnancies are lost, especially in the first trimester (sometimes estimated at 20 percent of pregnancies or higher). Oklahoma is requiring hopeful parents to not only pay the legal costs for their contract with the surrogate, but to also pay the costs for their attorney to apply for validation with the court — including any court filing fees — when the intended parents may never even reach a viable pregnancy. Further, the court must spend time reviewing these validation requests for pregnancies and births that may never occur.

Proof of Infertility/Discrimination Problems

The bill also includes the paternalistic requirement that “medical evidence provided shows that the intended mother is unable to carry a pregnancy to term and give birth to a child, or is unable to carry a pregnancy to term and give birth to a child without unreasonable risk to her physical or mental health or to the health of the unborn child.” That type of provision may sound familiar. In Utah, a similar requirement was litigated by a same-sex male couple all the way to the Utah Supreme Court. The hopeful parents lacked an intended “mother,” and argued that the law must be a read in a gender-neutral way (especially post-Obergefell and Pavan), while the lower courts held that a same-sex couple was not literally “infertile,” and thus could not benefit from the surrogacy statute in the state. Looks like Oklahoma is lining itself up for a similar challenge.

Marriage Requirement

Separately, the legislation requires that if there is more than one intended parent, the intended parents must be married to each other. So if both parents are genetically related to their embryos — but they aren’t married — will just one be denied parental validation, or both?

Despite these concerns, the bill at least gets credit for innovation and significant protections for hopeful parents and those wanting to help them. It might not be an A+, but at least it earns points for creativity and effort.


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.