Monday, December 7, 2015
Frequently Asked Questions About Washington State Surrogacy Laws: Guest Post By Christina Park, Esquire
Christina Park is a reproductive attorney and founder of the Law Offices of Christina Park in Seattle. She graduated from Yale Law School. Christina assists intended parents, egg donors, embryo donors, and surrogates and is proud to help build families.
We are considering surrogacy. What legal issues in WA state should we be aware of?
It is highly recommended that the intended parent(s) and the surrogate enter into a written surrogacy agreement. This is true even if the surrogate is a friend or relative.
Surrogacy agreements describe the terms of the arrangement in detail, outline each person’s rights and responsibilities, and document your wishes for who will be the child’s legal parents (with parental rights and duties under the law).
Surrogacy laws are relatively new and untested. It is difficult to predict the outcome of court cases in this area of law. If disagreements do arise, Washington courts will likely examine the written agreement to understand your intentions and resolve disputes.
It is important to document the terms of the surrogacy arrangement in your contract. This can provide you with additional confidence and security (both during and after the pregnancy). A qualified reproductive attorney can help you prepare the contract.
What issues will the legal agreement cover?
By addressing key issues and potentially sensitive topics, the legal agreement can help set clear expectations from the start and prevent disputes in the future. Surrogacy agreements address several issues, including the following:
Parents: Who will be the child’s legal parents, with parental rights and responsibilities?
Payment:What will the surrogate be paid? (In Washington, surrogates can only be reimbursed for pregnancy expenses, actual medical expenses, and attorney fees).
Involvement:How will the intended parents be involved (for example, with important decisions related to prenatal care and testing)?
Unexpected Events: What happens if one or both of the intended parents die before the birth? Who will have custody of the child?
Future Contact:Will there be future contact between the surrogate and intended parents? If so, under what circumstances?
Can we pay a woman to be our surrogate?
In Washington, you cannot compensate a surrogate. Washington courts will not uphold an agreement to compensate a surrogate; it would be considered a gross misdemeanor. However, you can reimburse the surrogate for her pregnancy expenses, actual medical expenses, and reasonable attorney fees for drafting the surrogacy contract.
We’re a married same-sex couple, and our child will be born to a surrogate. Do we need to adopt?
Under Washington law, both spouses in a marriage (including same-sex marriages) are presumed to be the legal parents of a child born during the marriage. However, other states may not recognize this parentage for same-sex spouses.
If one spouse is not genetically related to the child, you should consider an adoption to establish and confirm parental rights. An adoption proceeding can provide additional peace of mind and help ensure that both parents receive full parental rights, even if they move outside of Washington State in the future.
I’m single, and my child will be born to a surrogate. Do I need to adopt?
If you are single and not genetically related to the child (your eggs or sperm were not used to conceive the child), you should consider an adoption or parentage proceeding to confirm your status as the child’s sole parent.
If your eggs or sperm were used to conceive the child, you may still want to consider a parentage proceeding to establish that the surrogate is not the legal parent. This also protects the surrogate from having financial obligations to support the child.
Do the surrogate and intended parents need separate attorneys?
It is highly recommended that the intended parents and the surrogate be represented by separate attorneys. This makes it much more likely that the surrogacy contract will be seen as legally valid, if you ever wind up in court. It is in the best interests of everyone involved to hire separate attorneys for the intended parents and surrogate. Typically, the intended parents pay all attorney fees (including fees for the surrogate’s attorney).
What happens after I hire an attorney?
The intended parents’ attorney will collect the necessary information and prepare the first draft of the surrogacy agreement. The surrogate’s attorney will review the draft agreement and may request changes.
You will have the opportunity to read and review the legal agreement. You can discuss questions and concerns with your attorney, or suggest revisions to the agreement.
Typically, meetings with your attorney may take place either in-person or by phone.
The entire process can take 1 to 4 weeks, depending on how quickly the agreements are read and approved by the surrogate, intended parents, and their respective attorneys.