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Surrogacy in the DMV

Jennifer Fairfax

Surrogacy in the DMV

This article is to assist in understanding the similarities and differences in surrogacy in the DMV.

Surrogacy in Maryland

In Maryland there are no specific statutes that cover surrogacy. However, attorneys have been representing gestational carriers and intended parents in surrogacy matters for over 20 years as surrogacy is implicitly authorized and permitted in the state and courts have granted parentage orders in surrogacy cases for decades.  In re Roberto d.B. (2003) implicitly approved gestational surrogacy (holding that the trial court erred when it refused to allow a gestational carrier to remove her name from the birth certificate).  While gestational surrogacy is implicitly allowed, traditional surrogacy is not and should not be compensated in Maryland as there is an Attorney General’s Opinion from 2000 that makes it clear that payment to a traditional surrogate (birth mother) violates adoption and baby broker laws of Maryland and such agreements are not enforceable.  A compassionate traditional surrogacy agreement could be entered into as long as the parties understand the legal risks in such an arrangement.

Regarding gestational surrogacy, the parties will have entered into a gestational surrogate agreement prior to the start of any medications for an Embryo transfer. The surrogacy agreement will be comprehensive, covering all aspects of the party’s relationship and act as a of road map with regards to rights, responsibilities, obligations and expectations. The intended parents and the surrogate (and her spouse, if applicable) should have independent legal counsel and most ethical surrogacy attorneys require that all parties be represented. Furthermore, the agreement should include provisions that discuss the legal, financial and contractual rights, expectations, penalties and obligations of the agreement. Compensation is permitted in gestational surrogacy.

Once the surrogate is pregnant with the intended parents’ child. The attorney representing either of the parties can file a Petition for Parentage with the local court where the surrogate is expecting to give birth. That petition will include all aspects of the surrogacy arrangement and will ask the Court to issue an order that upon birth the child be known as the Intended Parents’ child.  Birth parentage orders are generally granted regardless of the intended parents’ marital status, sexual orientation or genetic relationship to the child. This order is provided to the hospital prior to the birth of the child and the hospital will treat the intended parents as the parents of the child upon birth.  The gestational surrogate will complete the appropriate paperwork at the hospital, confirming that she gave birth to the child and the hospital will attach the Birth Order to that paperwork to send it to Maryland vital records. Maryland Vital Records will issue a birth certificate listing the Intended Parents in about two weeks after the birth of the child.  International parents must have local counsel (in their home country) to provide the Maryland attorney with the specific information needed pursuant to their country’s laws prior to filing for the Birth Order.

 

Surrogacy in Virginia

Virginia has a surrogacy statue covers both traditional and gestational surrogacy. This statue here was enacted years ago and while there have been changes recently enacted to allow for expansive use, the foundation remains the same and has several nuances that make the process unique. Virginia requires parents to either get prior court approval and undergo a home study similar to the adoption process or wait until at least three days after the child’s delivery to file the requisite forms with the Birth Registrar. Very few pre-birth court approval processes have ever been done due to the cost and time and because it must all be done before the gestational surrogate is even pregnant.  In addition, the surrogacy laws place an absolute prohibition on surrogacy agencies operating in Virginia making it a felony to do so. A surrogate may only be compensated for her medical expenses or other costs, but nothing else.

Under the Virginia surrogacy statute, a surrogacy contract shall be binding and enforceable if it is in writing and signed by all parties. There must be no agreement to provide compensation beyond that explicitly allowed for under the statute for medical expenses and ancillary costs. The surrogate and intended parents should meet specific requirements, and it is recommended that they have independent legal counsel which most ART attorneys require. The agreement will have provisions that cover the legal, financial, and contractual rights, expectations, penalties and obligations of the Parties.  There are no pre-birth or post-birth orders unless the parties followed the expensive and time-consuming court-approved model.  The more common non-court model requires the parents to file a Surrogate Consent and Report Form with the Birth Registrar at least three days following the child’s birth.  If the parents are a married heterosexual or same-sex couple and at least one of them is genetically related to the child or they have custody and control (own) of the embryo as evidenced by an Embryo Donor Agreement they can be listed on the birth certificate. The timeframe for getting the birth certificate can take up to 6 months in Virginia so this is not an ideal jurisdiction for international intended parents.

 

Surrogacy in Washington, D.C.

Although Washington D.C. previously criminalized surrogacy, it is now an accepted practice and is expressly permitted pursuant to laws that became effective in April 2017.  Compensated surrogacy is permitted for both gestational and traditional surrogates and should be clearly noted in the surrogacy contract.  The statute in D.C. is clear that in cases of traditional surrogacy, the court must wait at least 48 hours after the child’s delivery before issuing an order of parentage.  This creates legal risk for the Intended Parents as a traditional surrogate can change her mind regarding the surrogacy agreement up and until 48 hours after the child is born.  Thus, traditional surrogacy should be entered into carefully after a full understanding of the risks involved.   A surrogacy contract shall be binding and enforceable in Washington D.C. if it is in writing, signed by all parties, and executed prior to embryo transfer. The surrogate and the intended parents must meet specific requirements and must have independent legal counsel. Like other jurisdictions, the gestational carrier agreement should include provisions that discuss the legal, financial, and contractual rights, expectations, penalties, and obligations of the Parties.  Pre-birth and post-birth orders are permitted for gestational surrogacy and become effective at the time the child is born. These orders can be obtained by a parent, regardless of marital status, sexual orientation, or the genetic relationship to the child.

In order to obtain a parentage order in D.C., 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.  The parents will receive the birth certificate within one month of the birth if the court order was issued at least six weeks prior to delivery. If not, it may take longer to obtain the birth certificate after the delivery.

 

Written by: Jennifer Fairfax, Esquire

Jennifer is a well-known and accomplished adoption and ART attorney licensed in Maryland, Virginia, and the District of Columbia.  She has experience in helping clients explore adoption and assisted reproductive technology options regardless of their family dynamic. If you are adoptive or intended parents, she can guide prospective adoptive parents through each step of the journey to help complete their family. She offers legal counsel on all adoption options, and assists in navigating the avenues available in locating birth parentssurrogates, intended parents, and, if preferred, working with a reputable licensed child-placing adoption agency. Similarly, if you are interested in being a Gestational Carrier, Jennifer can help you get started down that path.  She works collaboratively with clients, programs, and agencies to provide smooth and efficient legal services as clients build their families. Handling both adoption and ART in all three local jurisdictions she has vast experience in this area for these fields of law.