Washington, D.C. surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in the District of Columbia?

Yes. Surrogacy became legal in 2017 when the District of Columbia’s gestational surrogacy statute went into effect. 

Is Traditional Surrogacy Legal in the District of Columbia?

Yes. Traditional surrogacy is legal under D.C. surrogacy laws as long as the process follows the legal requirements.  In traditional surrogacy, parentage orders may not be issued for at least 48 hours following the birth of the baby.

Legally, traditional surrogacy is a complex process and is, therefore, very rare. Most surrogate attorneys will only complete gestational surrogacies.

Is Compensated Surrogacy Legal in the District of Columbia?

Yes. Compensated surrogacy is legal in D.C.; intended parents are permitted to compensate the surrogate for her time and expenses. Such compensation is typically arranged for in a surrogacy contract.  In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below: 

• Mock cycle compensation
• Embryo transfer compensation
• Starting medication compensation
• Monthly allowance for miscellaneous expenses
• Monthly Housekeeping budget
• Maternity clothing budget
• Medical expenses
• Travel to and from clinic/hospital
• Lost wages if applicable
• Child care if bed rest is required
• Term life insurance
• Medical insurance
• Independent legal counsel
• Psychological counseling
• Other depending on agency

Creating a District of Columbia Surrogacy Contract

Intended parents and surrogates must be represented by separate surrogate attorneys to ensure both parties’ rights and interests are protected when creating a surrogacy contract. The District of Columbia surrogacy laws set out a list of requirements for all gestational surrogacy contracts created in this state to be enforceable by law.

These requirements include:

Surrogates:

• Be at least 21 years old
• Have given birth to at least one live child
• Have undergone a medical and mental health evaluation for approval to be a surrogate
• Have completed a joint consultation with the intended parents by a mental health professional

Intended Parents:

• Be at least 21 years old
• Have completed a joint consultation with the surrogate
• If married or in a domestic partnership, both partners must meet these requirements

If these terms are met, the surrogate attorneys will negotiate a contract that addresses at least the following: 

• The rights and responsibilities of each party
• The potential risks and liabilities for each party
• Surrogate compensation
• Financial information, like coverage of medical expenses and surrogacy insurance
• Steps for establishing the intended parents’ rights to their child after birth
• Contact expectations before, during, and after the surrogacy
• And more

Once the intended parents, the surrogate, and her spouse (if applicable) consent to and sign the surrogacy contract, the medical process of surrogacy can begin. 

Determining Legal Parentage in the District of Columbia

Pre-birth parentage orders are permitted in the District of Columbia for intended parents, regardless of marital status, sexual orientation, or the genetic relationship to the child.  Pre-birth orders do not go into effect until the moment of birth, which is common in most states.  In order to obtain a pre-birth order,  the intended parent or the surrogate must be a legal resident of D.C., the intended parents or the surrogate must have resided in D.C. for at least one year preceding the filing of the petition, or the child must be born in D.C.