Taking Up Gestational Surrogacy in Washington

New legislative law and legal edict in Washington, that amends the Uniform Parentage Act had been made effective by January 1, 2019. It makes gestational carrier contracts permissible and enforceable in the state. These amendments allow pre-natal orders in certain cases. The newly published law for parenthood is appointed by RCW 26.26A.

Pre-natal Parenthood Orders

Do courts in Washington grant pre-natal parenthood orders?

Yes, orders of pre-natal parenthood are permissible in gestational surrogacy cases under the state’s new statute. Enforcing the pre-natal order is continued until the childbirth. Pre-natal orders are not applicable in traditional/genetic surrogacy cases; however, post-natal orders can be obtained after the termination of a 48-hour period that is the time for the genetic surrogate to decide whether to withdraw or continue with the agreement.

Is there any provision for the Intended or Aspiring Parents to be affirmed as the legal parents in a pre-natal order, if one of the parents has a genetic connection with the child?
 
Heterosexual or straight married couple with own sperm and egg: Yes*

Heterosexual or straight married couple going with egg or sperm donation: Yes*

Heterosexual or straight unmarried couple with own sperm and egg: Yes*

Heterosexual or straight unmarried couple going with egg or sperm donation: Yes*

Same-sex or homosexual couple going with egg or sperm donation: Yes*

Same-sex or homosexual couple going with egg or sperm donation: Yes*

Single parent using own sperm or egg: Yes*
 
*The legal act includes certain prerequisites for a contract for gestational surrogacy to be enabled for implementation, including but not restricted to: Gestational carrier must have been pregnant priorly having given birth to at least a child. But this should not exceed 2 prior surrogacies; Gestational Carrier and Intended Parents should be at least 21 years old, and should go through physical and mental health screening, and should have an autonomous legal entity to their support. If a gestational surrogacy contract or agreement does not follow these legal compliances, the jurisdiction may impose the intent of the parties involved and provide orders concerning the parties’ responsibilities and rights.

The contracts for traditional surrogacy must be first approved by the jurisdiction before the assisted reproduction takes place. The statutory law in the state also has specific requisites for the agreements for genetic surrogacy.

Also, for a surrogate who lives within Washington or have to go by the procedure within the state, a surrogacy “agent” (the one who attends and facilitates transactions of a surrogacy agreement) must keep all Intended Parents funds in a separate and safe, licensed escrow account; may not be operated and owned, even partly or indirectly, taken care by an attorney playing a representative to the Gestational Carrier contract or through a medicinal professional taking part in the assisted reproduction; and not receiving any payment, directly or not directly, from a provider with a legal license to practice law or from a healthcare professional, in relation to the appointment of an entity or person to the surrogacy contract.

Is there any provision for declaring both the intended parents as legal parents through an order for pre-birth parenthood, if no parent has a genetic connection with the child?

Married heterosexual or straight couple: Yes

Unmarried heterosexual or straight couple: Yes

Homosexual or same-sex couple: Yes

Single parent: Yes

 
Where is the Venue?
 
The venue is one of the places where the child lives in, where the one of the Aspiring Parent resides, where the Surrogate lives, or the place where a medical procedure or health evaluation ensued as per the Gestational Carrier’s agreement.
 
Note: The legal authority in the state goes by specific judgments for the contract for gestational surrogacy and this varies across time. It is processed within 90 days after birth takes place.

Do results change as per venue? 

No. Parenthood petitions, orders, and motions need to go by prescribed procedure and fill the legally enforced forms (which are yet to be implemented). The procedure for acquiring the orders will differ across counties.

Can the venue be changed or waived?

Not known. But venue requests should be generally obliged.

Is there a need for hearing to obtain a court order for post-birth parenthood or parentage?

Not known. There should be a need for some sort of hearing.
 
Is an order for pre-natal parenthood obtainable in Washington if the Gestational Carrier plans to deliver in the state if in case none of the engaged parties live in Washington?

 Yes. Under Section 703, if none of the Gestational Carrier or the Intended Parents live in Washington, at minimum one health diagnosis, medical check-up or mental counseling must take place in the state.
 
Does Washington Vital Records recognize a pre-natal order from some other state?

There’s a possibility (laying down of the administrative rule for this is in progress)
 
Is there any time limit to acquire the certificate of birth post-delivery?

It generally takes a few weeks

Same-sex Or Homosexual Couple Surrogacy in Washington

How homosexual parents’ names are placed on the certificate of birth?

Parent & Parent
 
Can an initial certificate of birth be provided to homosexual couple from another country, on mentioning the name of the gestational carrier and biological father?

Probably, but there’s no such case served under the new legal edict yet.
 
Can the initial birth certificate be acquired subsequently by a same-sex couple from another country, if they only mention the name of the genetically related father and not the name of the gestational carrier?

Maybe, but there’s no case served under the new statute yet.

Alternatively, is it possible for a homosexual couple obtains from another country to acquire an initial certificate for birth by only naming the genetic father?

Unknown

Can the non-biologically related homosexual parent acquire a second/companion parent adoption in South Dakota solely based on the reason that the childbirth took place in Washington?

Yes, if the Surrogate resides in Washington.

Adoptions of Second/Companion Parent & Stepparent by the Residents of Washington

Note: This situation arises if the birth of the child takes place outside Washington. The parents then come back to Washington to seek and acquire adoption order for second/companion parent or stepparent.

Does the jurisdiction in Washington allow the adoption of second/additional parent or stepparent to straight couples residing in the state?

Yes

Is there a requirement for the couple to be married?

The couple must either be married to each other or must be legally registered, domestic partners.

Do Washington’s courts allow the adoption of second/additional parent or stepparent to homosexual couples residing in the state?

Yes

Is there a requirement for the couple to be married?

The couple must either be married to each other or must be legally registered, domestic partners.

Sperm and Egg Donation

Is there a published case or legal edict that addresses the donor’s right related to the resulting sperm, eggs, embryo or child? Yes. RCW 26.26A.605 states that “a gestational donor is not to be considered as a parent of a child conceived by assisted reproduction.”

Note: Under RCW 26.26A.805 et seq., any fertility banks or clinics that collect gametes from donors within Washington must have all the information about the donor with them.

Conventional Surrogacy in Washington

Conventional Surrogacy is another name for “Genetic Surrogacy” and is legalized under the new statute in Washington.

Genetic surrogacy contracts must be legalized by the court before going for the assisted birth. The statutory law also has certain requisites for genetic surrogacy contracts.

Orders for pre-natal parentage are not obtainable in cases concerning genetic surrogacy. Post-natal orders can be acquired, but not till a 48-hour termination period during which a surrogate may repeal or withdraw her contract. Under the jurisdictional act, the court may arbitrate parenthood in the cases of genetic surrogacy serving the child’s interest and the intent of the involved parties when working on the contract. 

Please Note: Since laws of any state pertaining to egg donation or surrogacy may change at any time, the above statements may not be accurate at the time of the match and reproductive attorney consultation is necessary, the referral can be provided through Rite Options.