GESTATIONAL SURROGACY LAW WASHINGTON
As of January 1, 2019, an updated and amended version of the Washington Uniform Parentage Act was enacted, which now permits compensated gestational surrogacy as well as traditional surrogacy arrangements that comply with the respective statutory framework.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Washington, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Washington.
Is Gestational Surrogacy Legal in Washington?
Yes. As of January 1, 2019, compensated gestational surrogacy is legal as well as traditional surrogacy arrangements that comply with the respective statutory framework.
Is Traditional Surrogacy Legal in Washington?
Yes. Traditional surrogacy is legal and is referred to as “genetic surrogacy” in Washington. Pre-birth orders, however, are unavailable in these cases but post-birth orders are available following a 48-hour waiting period during which time the surrogate may rescind the agreement.
Is Compensated Surrogacy Legal in Washington?
Yes. Compensated surrogacy is legal in Washington and the 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 Washington Surrogacy Contract
In order for a surrogacy agreement to be enforceable in Washington, intended parents and surrogates must have independent legal representation and must meet the following requirements:
- Surrogate must have had a prior pregnancy resulting in the birth of a child but no more than 2 prior surrogacies
- Surrogate and intended parents must all be at least 21 years old
- Surrogates and intended parents must undergo medical and mental health screening
- At least one of the parties must be a resident of Washington.
If these terms are met, the surrogate attorneys will negotiate a contract that addresses the following:
- The rights and responsibilities of each party
- The potential risks and liabilities for each party
- 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 surrogacy contracts has been signed by both parties, notarized, and executed, the medical process of surrogacy can begin.
Determining Legal Parentage in Washington
Under the updated and amended Act, pre-birth parentage orders are now available in gestational surrogacy cases to any intended parent, regardless of marital status, genetic connection to the child, or sexual orientation, as long as the gestational carrier agreement complies with the statutory requirements. 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.
Same-Sex Surrogacy in Washington
Q: Is Same-Sex Surrogacy Legal in Washington?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Washington?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Washington?
A. Yes. Surrogacy contracts are enforceable as long as they meet the statutory requirements.
Q: Are There Any Particular Laws for parents Outside the United States Who Complete a Surrogacy in Washington?
A: No. International Intended Parents are subject to the same Washington surrogacy laws as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Post-birth adoptions are rarely necessary because pre-birth parentage orders are now available in gestational surrogacy cases to any intended parent, regardless of marital status, genetic connection to child, or sexual orientation as long as the gestational carrier agreement complies with the statutory requirements.
The exception to this would be when intended parents are from Washington but complete a surrogacy arrangement in a different state where they are unable to obtain or secure their parental rights. In these situations, the parents may complete a post-birth adoption in Washington.
Q: Does Washington Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are permitted and available to unmarried couples.
Stepparent adoptions are permitted and available to married couples.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: In most cases, intended parents who complete a surrogacy using a donor egg, sperm or embryo can obtain a post-birth parentage order or use an affidavit from their physician to establish their rights to their child.
Washington statutes state that “a donor is not a parent of a child conceived by means of assisted reproduction.”
REPRODUCTIVE LAW PRACTITIONERS
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