Jon Tammen and Melissa Flaherty in Olympia 2018
Below is the Brief Summary of Engrossed Substitute Bill. I will be sure to post more about Bill SB6037 as it goes for a vote next week!
Surrogacy Agreements.
New provisions are established governing both gestational surrogacy agreements and genetic
surrogacy agreements. A gestational surrogate is a woman who agrees to become pregnant
through assisted reproduction using gametes that are not her own, while a genetic surrogate is a
woman who agrees to become pregnant through assisted reproduction using her own gamete.
In order to act as a surrogate, a woman must:
*be at least 21 years of age;
*have previously given birth to at least one child but not enter into more than two
surrogacy agreements that result in the birth of a child;
*complete a medical evaluation and mental health consultation; and
*have independent legal representation of her choice throughout the surrogacy
arrangement.
Each intended parent under a surrogacy agreement must be at least 21 years of age, complete a
medical evaluation and mental health consultation, and have independent legal representation
throughout the surrogacy arrangement.
House Bill Analysis - 5 - ESSB 6037
A surrogacy agreement must comply with the following requirements:
*at least one party must be a resident of the state, or at least one medical evaluation or
procedure or mental health consultation must occur in the state;
*the agreement must be in a record, signed by each party, and attested by a notarial officer
or witnessed;
*counsel for the woman acting as a surrogate and the intended parent or parents must be
identified in the surrogacy agreement;
*the intended parents must pay for legal representation for the woman acting as a
surrogate; and
*the agreement must be executed before the occurrence of a medical procedure related to
the agreement.
A surrogacy agreement must also comply with other requirements, including that: each intended
parent immediately upon birth will be the parents of the child and assume financial responsibility
for the child, regardless of the number of children born or the gender or mental or physical
condition of each child; and the woman acting as a surrogate must be permitted to make all
health and welfare decisions regarding herself and the pregnancy. A surrogacy agreement may
provide for payment of consideration, reasonable expenses, and reimbursement of expenses if the
agreement is terminated.
Genetic surrogacy agreements must be validated by the superior court in a proceeding
commenced before the assisted reproduction. A party may terminate a surrogacy agreement at
any time before a gamete or embryo transfer. Under a genetic surrogacy agreement, the woman
acting as a surrogate may withdraw consent to the agreement at any time before 48 hours after
the birth of the child by providing each intended parent with notice. A woman acting as a
surrogate is not liable for a penalty or liquidated damages for terminating the agreement except
in a case involving fraud.
Upon birth of a child under a gestational surrogacy agreement, each intended parent is by
operation of law a parent of the child and neither the woman acting as a surrogate nor her spouse
or former spouse is a parent of the child. Each intended parent under a court-validated genetic
surrogacy agreement is a parent of a child conceived under the agreement.
Where an intended parent dies before the gamete or embryo transfer, the intended parent is not a
parent of the child unless the agreement provides otherwise and the transfer occurs not later than
36 months after the death of the intended parent or the birth occurs not later than 45 months after
the death of the intended parent.
A party may institute a proceeding for an order or judgment regarding parentage under a
surrogacy agreement. Provisions are established governing the effect and enforceability of
surrogacy agreements, including the effect of nonvalidated genetic surrogacy agreements and
remedies available for breach of an agreement. Unless otherwise ordered by a court, a petition
and other documents related to a surrogacy agreement are not open to inspection except by the
parties to the proceeding, a child conceived by assisted reproduction under the agreement, their
attorneys, and the State Registrar for Vital Statistics.
Information About Donor. More specific standards are established regarding the requirement for
a gamete bank or fertility clinic to collect and maintain records of a donor's identifying
House Bill Analysis - 6 - ESSB 6037
Information and medical history. A gamete bank or fertility clinic must obtain a declaration from
the donor regarding whether or not the donor agrees to disclose the donor's identity to a child
conceived with the donor's gametes once the child turns 18 years of age. Upon request, a gamete
bank or fertility clinic must make a good faith effort to provide a child conceived by assisted
reproduction access to nonidentifying medical history of the donor and identifying information
of the donor unless the donor signed a declaration stating that the donor does not agree to
disclosure of identifying information.
Other Provisions. The act applies to a pending proceeding to adjudicate parentage commenced
before the effective date of the act for an issue on which a judgment has not been entered.
Regulations are established governing a surrogacy broker that arranges or facilitates surrogacy
transactions if: the surrogacy broker does business in Washington; a surrogate who is a party to a
surrogacy agreement resides in Washington during the term of the agreement; or any medical
procedures under the agreement are performed in Washington.
Appropriation: None.
Fiscal Note: Requested on February 14, 2018.
Effective Date: The bill takes effect on January 1, 2019.
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