The Iowa Code implicitly permits Gestational Surrogacy. First, it specifically exempts surrogacy agreements from Iowa Code §710.11, which prohibits the purchase or sale of an individual.
Second, Section 641-99.15 of the Iowa Administrative Code outlines the precise steps for Vital Records to take in issuing birth certificates to children born to Gestational Carriers.
In addition, the Iowa Supreme Court held in P.M. & C.M. v. T.B. & D.B., No. 17-0376 (February 16, 2018), that gestational surrogacy contracts are enforceable and do not violate public policy or the constitutional rights of the carrier or the child. The Court held that gestational surrogacy contracts are consistent with both Iowa Code § 710.11 and Iowa Administrative Code Section 641-99.15. The court concluded that “gestational surrogacy agreements promote families by enabling infertile couples to raise their own children and help bring new life into this world through willing surrogate mothers.”
Do courts grant pre-birth parentage orders? Yes, but it is only a partial order. Under the Iowa Code, the woman bearing the child is presumed to be the legal mother. Therefore, only the Intended Father (if a heterosexual couple) or the biological father (if a same-sex couple) can obtain a pre-birth order, requiring a 2-step process. The non-biological parent must then undergo a post-birth process, either in Iowa or elsewhere, to terminate the Gestational Carrier’s rights and establish the second parent’s legal rights.
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
What are the bases for venue? The county of the child’s birthplace, the county of the Gestational Carrier’s residence
Do results vary by county? Yes
If yes, are motions to waive venue accepted? Yes, generally.
Is a hearing required to obtain a pre-birth order? Sometimes, depending on the requirements of each judge.
Is a pre-birth order possible in Iowa based on a Gestational Carrier’s plan to deliver in Iowa, if no party lives in Iowa? Yes
Will Iowa Vital Records honor a pre-birth order from another state? Possibly. Generally, it is honored when the pre-birth order contains the information deemed necessary by Iowa Vital Records and complies with Iowa Administrative Code.
What is the typical time frame to obtain a birth certificate after delivery? Several weeks
How are same-sex parents named on the final birth certificate? The Iowa Supreme Court concluded in Gartner v. Iowa Dept. of Pub. Health that The Iowa Department of Public Health must include both parents’ names on the child’s birth certificate, regardless of gender. However, naming the parents as “Parent and Parent” has not been seen in practice.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Most likely, yes.
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes, after a second parent adoption.
Can the non-biological parent obtain a second parent adoption based solely on the fact that the child was born in Iowa (i.e., neither of the Intended Parents lives in Iowa)? Yes
Note: This situation typically arises if the child is born outside the state. The parents then return to Iowa to obtain a second parent adoption or stepparent adoption in Iowa.
Will courts in Iowa grant second parent adoptions or stepparent adoptions to heterosexual couples living in Iowa? Yes, and the process does not require the formalities of an adoption, such as a home study.
Does the couple need to be married? No
Will courts in Iowa grant second parent adoptions or stepparent adoptions to same-sex couples living in Iowa? Yes
Does the couple need to be married? No
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? No
Traditional Surrogacy is decriminalized by Iowa Code § 710.11. Dicta in the P.M. & C.M. v. T.B. & D.B. case suggests that the Iowa Supreme Court would find that a Traditional Surrogacy contract is enforceable. Filing a Termination of Parental Rights, paternity action, and/or adoption may still be necessary to correctly establish birth certificates. Note: Before considering undergoing a traditional surrogacy, a local Iowa attorney should be contacted for immediate advice on legal ramifications.
Emilee Gehling, Gehling Osborn Law Firm, PLC
Sioux City, IA
Emilee@golawfirm.com
(712) 226-4600
Lori Klockau
Iowa City, IA
www.brayklockau.com
(319) 338-7968
Shayla McCormally
McCormally and Cosgrove PLLC
515-218-9878
shayla@mciowalaw.com
De Koster & De Koster, PLLC
philip@dekosterlaw.com
dekosterlaw.com
Hull, Iowa
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