GESTATIONAL SURROGACY IN WASHINGTON

Purely non-compensatory, compassionate Gestational Surrogacy is permitted in Washington by Wash. Rev. Code §26.26.210etseq.  However, all other surrogacy contracts are void and subject to criminal penalties.

NOTE:  New legislation was was enacted that amends the Uniform Parentage Act, effective January 1, 2019, to decriminalize commercial surrogacy in Washington and permit it subject to a myriad of requirements. http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Passed%20Legislature/6037-S.PL.pdf#page=1

Do courts grant pre-birth parentage orders?   No. Parentage is established post-birth, either through an affidavit and a physician’s certificate form (requiring no court intervention) or a post-birth order or an adoption proceeding.

PRE-BIRTH PARENTAGE ORDERS

In a compassionate surrogacy case, can both Intended Parents be declared the legal parents in a post-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, same as a married couple, but a court order is advised.
• Unmarried heterosexual couple using an egg donor or sperm donor: Yes, same as a married couple, but a court order is advised.
• Same-sex couple using an egg donor or sperm donor: Yes, so long as one parent is the biological parent. Married same-sex parents are treated the same as married heterosexual parents.
• Single parent using own egg or sperm: Yes, but a court order is advised.

In a compassionate surrogacy case, can both Intended Parents be declared the legal parents in a post-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*

*Although post-birth orders are possible in all cases, courts are more accustomed to post-birth adoptions in these two circumstances.

What are the bases for venue? The county of the child’s birthplace, the county of the Gestational Carrier’s residence, or the county of the Intended Parents’ residence.

Do results vary by venue? No

Will Washington Vital Records honor a pre-birth order from another state? Yes. So long the child is born in Washington, Washington courts will honor a parentage order or an adoption order, without regard to the parents’ marital status.

What is the typical time frame to obtain a birth certificate after delivery? 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? Yes, if the child is born in Washington.

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes, if they are married. Another option is through an adoption for single, married, or unmarried Intended Fathers. Adoption is strongly recommended for same-sex couples, to protect their rights in other states and other countries.

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Washington (i.e., neither of the Intended Parents lives in Washington)? Yes

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, provided the couple is physically present in Washington with the intent to remain Washington residents.
Does the couple need to be married?  No

Will courts in Washington grant second parent adoptions or stepparent adoptions to same-sex couples living in Washington?  Yes, provided the couple is physically present in Washington with the intent to remain Washington residents.
Does the couple need to be married?  No

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.  The statute in Washington Wash. Rev. Code §26.26.705 through 26.26.740 refer to both egg and sperm donation in gender-neutral terms and provide the same protection to both.

TRADITIONAL SURROGACY IN WASHINGTON

Traditional Surrogacy is permitted in Virginia under the Virginia Assisted Conception Statute, so long as all the statutory restrictions are met.

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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