Gestational Surrogacy Law in Washington, D.C.

Surrogacy became legal in 2017 when the District of Columbia’s gestational surrogacy statute went into effect.  Washington, D.C's gestational surrogacy laws are now clear-cut and guide intended parents and surrogates through the surrogacy process. Pursuing surrogacy in D.C. is very safe due to the well-regulated laws and is becoming an increasingly popular way to grow families in this state.  

Although the following guide can give you a better understanding of pursuing surrogacy in Washington D.C., it is not meant to be legal advice. It is important to consult with an experienced surrogate attorney to understand how the laws in this state pertain to your unique situation.

Below is a list of some of the most frequently asked questions about surrogacy in the District of Columbia.

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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.

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Same-Sex Surrogacy in the District of Columbia

Q: Is Same-Sex Surrogacy Legal in the District of Columbia?
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 the District of Columbia?
A: No. There are no additional laws impacting same-sex parents in this state.

FAQ’s

Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in the District of Columbia?

A: Yes. D.C. surrogacy contracts are enforceable as long as they meet the list of requirements. 

Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in the District of Columbia?

A: No. There are no additional laws for international intended parents that do not apply to domestic intended parents completing a surrogacy in the District of Columbia.  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: In most cases, intended parents can receive a pre-birth order naming them as the legal parent of their child regardless of whether the intended parent has a genetic connection to the child so an adoption is rarely needed in a D.C surrogacy.

However, if intended parents from Washington, D.C. complete a surrogacy in another state where they can’t obtain a pre-birth order, they may be required to complete an adoption after birth in that state or when they return home to D.C.

Q: Does the District of Columbia Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

A: Yes. The District of Columbia allows second-parent adoptions, although they are rarely needed.  An exception would be if an unmarried intended parent couple cannot complete a second-parent adoption in the state where their child is born, they can return to D.C. to complete a second-parent adoption.

Married couples can always complete a stepparent adoption in D.C.

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?

A: Because the District of Columbia courts will grant pre-birth orders to intended parents regardless of their genetic connection to their child born via surrogacy, they usually do not need to complete any additional legal steps when using a donor egg, sperm, or embryo. 

However, if intended parents use a donated egg from a traditional surrogate, there is a 48-hour waiting period before a parentage order can be granted to intended parents.

Reproductive Law Practitioners in Washington, D.C.

Maria Bates
Myakka City, FL (licensed in D.C.)
maria@mariabateslaw.com
(941) 526-0280

Lynn Levitan
Los Angeles/San Diego/MD/DC
lynn@californiasurrogacylawyers.com
(760) 444-1565

Jennifer Fairfax
Silver Spring, MD (licensed in D.C.)
jfairfax@jenniferfairfax.com
(240) 863-2441

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