GESTATIONAL SURROGACY IN WASHINGTON

New legislation in the state of Washington, which amends the Uniform Parentage Act and is effective January 1, 2019, provides for enforceable gestational carrier agreements and pre-birth orders under certain conditions. The new parentage statute, RCW 26.26A, is found at http://app.leg.wa.gov/RCW/default.aspx?cite=26.26A.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, pre-birth parentage orders are available in gestational surrogacy cases under Washington’s new statute. Enforcement of the pre-birth order is stayed until the birth of the child.  Pre-birth orders are not available in cases involving traditional surrogacy (called “genetic surrogacy”), however, post-birth orders are available following the expiration of a 48-hour period during which the genetic surrogate may rescind agreement.

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?

• Married heterosexual couple using own egg and own sperm: Yes*
• Married heterosexual couple using an egg donor or sperm donor: Yes*
• Unmarried heterosexual couple using own egg and own sperm: Yes*
• Unmarried heterosexual couple using an egg donor or sperm donor: Yes*
• Married same-sex couple using an egg donor or sperm donor: Yes*
• Unmarried same-sex couple using an egg donor or sperm donor: Yes*
• Single parent using own egg or sperm: Yes*

*The statute includes specific requirements for a gestational surrogacy agreement to be entitled to enforcement, including but not limited to: GC must have had a prior pregnancy resulting in the birth of a child but no more than 2 prior surrogacies; GC and IPs must all be at least 21 years old, undergo medical and mental health screening , and have independent legal representation of their choice. If a gestational surrogacy agreement does not comply with these requirements, the court may still enforce the parties’ intent and enter orders regarding the parties’ rights and responsibilities.

Genetic surrogacy (traditional surrogacy) agreements must be validated by the court prior to the commencement of the assisted reproduction.  The statute also includes specific requirements for genetic surrogacy agreements.

Also, with respect to any surrogate who resides within the state or has medical procedures within the state, a surrogacy “broker” (an entity who facilitates or is involved in transactions related to the surrogacy agreement) must keep all IP funds in a separate, licensed escrow account; may not be owned or managed, even in part or indirectly, by a lawyer representing any party to the GC agreement or by a health care provider involved in the assisted reproduction; and may not receive any payment, directly or indirectly, from any person licensed to practice law or from any medical provider, in connection with the referral of a party to the surrogacy agreement .

Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

• Married heterosexual couple: Yes
• Unmarried heterosexual couple: Yes
• Same-sex couple: Yes
• Single parent: Yes

What are the bases for venue? County where the child resides or is located, county where the Intended Parent resides, county where the Gestational Surrogate resides or is located, or county where a medical evaluation or procedure or mental health evaluation under the GC agreement occurred

Note: Court has exclusive jurisdiction over all matters pertaining to the gestational surrogacy agreement from the time it is executed until 90 days after birth.

Do results vary by venue?  No. Parentage petitions, motions and orders must use mandatory forms (which are still in development).  Procedure for entering orders will vary from county to county.

Are motions to waive venue accepted?  Unknown.  Venue requirements are quite permissive.

Is a hearing required to obtain a pre-birth order?  Unknown.  Some type of hearing will likely be required.

Is a pre-birth order possible in Washington based on a Gestational Carrier’s plan to deliver in Washington, if no party lives in Washington?  Yes. Under Section 703, if neither the GC nor the IP live in the state, at least one medical procedure or mental health consultation must occur in the state.

Will Washington Vital Records honor a pre-birth order from another state?  Possibly (administrative rulemaking is underway)

What is the typical time frame to obtain a birth certificate after delivery?  Typically a few weeks

SAME SEX COUPLE

How are same-sex parents named on the final birth certificate? Parent and parent

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Probably, but no experience under new statute yet

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Probably, but no experience under new statute yet

Alternatively, can an international same-sex male couple obtain an initial birth certificate naming the biological father only?  Unknown

Can the non-biological parent in a same-sex couple obtain a second/step parent adoption based solely on the fact that the child was born in Washington?  Yes, if the Gestational Surrogate lives in Washington

SECOND PARENT & STEPPARENT ADOPTIONS FOR WASHINGTON RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to Washington to obtain a second parent adoption or stepparent adoption in Washington.

Will courts in Washington grant second parent adoptions or stepparent adoptions to heterosexual couples living in Washington?  Yes

Does the couple need to be married?  The couple must either be married or registered domestic partners.

Will courts in Washington grant second parent adoptions or stepparent adoptions to same-sex couples living in Washington?  Yes

Does the couple need to be married?  The couple must either be married or registered domestic partners.

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes. RCW 26.26A.605 specifies that “a donor is a not a parent of a child conceived by assisted reproduction.”

Note: Under RCW 26.26A.805 et seq., any gamete banks or fertility clinic that collects gametes from a donor within the state of Washington must collect information about the donor: “A gamete bank or fertility clinic licensed in this state shall collect from a donor the donor’s identifying information and medical history at the time of the donation. If the gamete bank or fertility clinic sends the gametes of a donor to another gamete bank or fertility clinic, the sending gamete bank or fertility clinic shall forward any identifying information and medical history of the donor, including the donor’s signed declaration under RCW 26.26A.815 regarding identity disclosure, to the receiving gamete bank or fertility clinic. A receiving gamete bank or fertility clinic licensed in this state shall collect and retain the information about the donor and each sending gamete bank or fertility clinic.”  The gamete bank or fertility clinic must give the donor a choice to sign a notarized declaration either permitting disclosure of the donor’s identity to “a child conceived by assisted reproduction with the donor’s gametes on request once the child attains eighteen years of age,” or stating that “the donor does not agree presently to disclose the donor’s identity to the child.” The donor may withdraw the declaration at any time.  If a request for disclosure of the donor’s identifying information is made, the gamete bank or clinic must “make a good faith effort” to provide the child with the information, unless the donor signed and did not withdraw a declaration of nondisclosure.

TRADITIONAL SURROGACY IN WASHINGTON

Traditional Surrogacy is called “Genetic Surrogacy” in Washington and is permitted under the new statute.

Genetic surrogacy agreements must be validated by the court prior to the commencement of the assisted reproduction.  The statute also includes specific requirements for genetic surrogacy agreements.

Pre-birth orders are not available in cases involving genetic surrogacy.  Post-birth orders are available, but not until the expiration of a 48-hour period during which the genetic surrogate may rescind her agreement.  Under the statute, the court shall then adjudicate parentage in genetic surrogacy cases based on the “best interest of the child” and the intent of the parties when executing the agreement. 

State law information provided by the following attorneys practicing Reproductive Law in this state:

Raegen Rasnic
Seattle, WA
rrasnic@skellengerbender.com
(206) 623-6501

Rita Bender
Seattle, WA
rbender@skellengerbender.com
(206) 623-6501

Other attorneys practicing Reproductive Law in this state:

Mark M. Demaray
Edmonds, WA
markdemaray@msn.com
washingtonadoptionattorney.com

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