By Jeffrey Ott, Attorney
McKean Smith
Beginning January 1st 2019, potential surrogates can be compensated for their labors. An updated Uniform Parentage Act was passed by the Washington Legislature and signed into law in March of 2018. Below is the section of the Revised Code of Washington (RCW) which approaches the subject and delineates who the legal parents are of the child to be born. This new body of law also clarifies the qualifications of who may be a surrogate, and the actions required to do so.
There are requirements under RCW 26.26.702, to be a gestational or genetic surrogate. One must:
- Be at least 21 years of age or older
- Have previously given birth to a least one child, but not have entered into more than two prior surrogacy agreements.
- Be evaluated by a medical doctor regarding the surrogacy
- Receive a mental health evaluation
- Have independent legal counsel (of their choice) during the length of the surrogacy agreement.
There are two types of surrogates. To clarify, a gestational surrogate has no genetic relation to the child they are carrying. A genetic surrogate uses their own eggs and donor sperm to create and carry a child. A gestational surrogate accrues no legal rights to the child. A genetic surrogate may assert parental rights within 48 hours after birth of the child by withdrawing from the surrogacy agreement. There are very specific procedural rules that need to be followed to make the withdrawal effective.
In order to be an intended parent of the child to be born of the surrogate, one must:
- Be at least 21 years of age or older
- Be evaluated by a medical doctor regarding the surrogacy
- Receive a mental health evaluation
- Have independent legal counsel during the length of the surrogacy agreement.
Those are the bare minimums for just being eligible for potentially becoming a surrogate and intended parent. Intended parents are also responsible for paying for the legal counsel of the surrogate, the agreement must be notarized, and a written statement made by each party that they have received the agreement.
There are many reasons to use legal terms in matters of surrogacy. It creates a contract, that when properly executed by capable parties, allows for numerous rights and responsibilities of the intended parent and the surrogate. For example, when the surrogate gives birth, the intended parents automatically become the legal parents of the child, regardless of how many there are or whether there are any disabilities or not. (There are exceptions to this.) The person acting as a surrogate must comply with any obligations under the Surrogacy Agreement, such as abstaining from any use of drugs, alcohol, or tobacco. They may be restricted in the types of foods they can eat or activities they may participate in before and during the pregnancy. Having a legal agreement set in place prior to surrogacy will help to prevent any unnecessary and unexpected hardships for both the intended parent and the surrogate.
There are additional financial benefits for the surrogate, apart from helping those who cannot conceive on their own, achieve parenthood. As of January 1st, 2019, surrogates can be paid for being pregnant, in addition to having all expenses related to the pregnancy covered by the intended parents. According to circlesurrogacy.com and growinggenerations.com, it appears surrogates have been known to receive up to $40,000-$60,000 in compensation for a single pregnancy. The payment for multiple pregnancies is, of course, higher. The surrogate has the right to make all of their own decisions regarding their own health and welfare. Any provision written into the Surrogacy Agreement that infringes upon those rights are void and unenforceable. The surrogate’s rights to terminate the pregnancy also cannot be infringed.
This is a complex and heavily regulated area of law. Perhaps as it should be, given what is a stake. If you have any questions about the laws regarding Surrogacy or other Assisted Reproductive Technology issues please contact Jeffrey Ott or Collin McKean at McKean Smith.
This article is not legal advice and cannot be relied upon as legal advice. This area of law has many exceptions and nuances. Each case is different and deserves to be looked at for its unique circumstances.
