Assisted Reproduction & Surrogacy

MEDICAL TECHNOLOGY

As medical technology advancements have been made in the last few years, more viable opportunities for Assisted Reproductive Technology (ART) treatments and procedures have become available to families experiencing fertility issues. Although the sperm donation process has been available for years, in the last decade, donation of ova and embryo donation have also become available and success rates at good fertility clinics are quite high.  It is increasingly common today to have a couple conceive a child by using donor egg or donor sperm which are united in vitro to form an embryo that is then transferred to the intended mother’s reproductive tract such that a pregnancy is achieved. The intended mother then gives birth to a child to whom she may or may not be biologically related to, yet she intends to parent that child. Also, the same basic medical processes can be used to achieve a pregnancy in a woman acting as a gestational surrogate such that she gives birth to a child to whom she is not biologically related for the benefit of the intended parents.

WHY DO I NEED AN ATTORNEY FOR MY DONATION OR SURROGACY PLANS ?

When families plan to have children through the Assisted Reproduction process, such situations and many other variations allow families to be formed with the assistance of physicians and fertility clinics all over the country and indeed, throughout the world.  Its fair to say however, that most commonly, the medical technology has developed faster than the laws in most states, and when the medical process is over and a child is born, its critically important to make certain that the legal rights and status of all parties is clear — the ones who intended to be parents of the child need to be recognized as parents, and donors and surrogates who wanted to help but had no intention of being a parent, need to be certain that they have no such parental responsibilities.  Each state and jurisdiction varies a great deal on how legal parentage is established in the intended parents, and how a donor and a surrogate insure that he or she have no parental obligations or responsibilities for any child born through the assisted reproduction procedure. Washington state law generally provides that a “donor” of ova, sperm or embryos is not a parent unless otherwise agreed — and so it is important to have a clear, written agreement between the parties spelling out who is intended to have rights as a parent, and who is not.  This is true in both donor situations and in surrogacy situations.   Washington law specifically allows surrogacy, but it currently prohibits a surrogate from receiving a “fee” for surrogate services (it is a crime).  There are situations where individuals can act as a surrogate and have expenses paid, but it is important to get the advice of an attorney who is practiced and knowledgeable about the particular laws in Washington State to consider the many legal issues and possible complications in such situations.  For the reasons noted above, most medical clinics that assist families with ARTS procedures require a legal agreement between the parties to outline their intent as to who will be the parent or parents of a child born as the result of the medical procedures, who will have the rights and responsibilities as parents of the child, and who will not have such rights.  Most states have cases and laws on this point that look to the intent of the parties to an ARTS agreement and the best means of outlining that intent is to have a clear, written agreement.   Washington is one of the few states that has fairly clear laws that specifically address these assisted reproduction issues and help make clear the legal relationships in such cases.

There were proposals in both the 2010 and 2011 in the Washington state legislature to amend the law in this state to revise the rules dealing with surrogacy and to allow payment of fees to a surrogate, but neither of those proposals were passed into law.   There was some discussion about another similar Bill being proposed in the 2013 Legislative Session that would change the surrogacy and Assisted Reproduction law in this state, but that did not happen.  If you have an interest in seeing a change in the law in Washington state in this area, please contact your elected representatives and express your views.   If you want to get the latest information on the status of any proposed changes, feel free to contact our office.

Here is a link to a helpful webpage that gives a brief description of the surrogacy laws and rules in other states — although it is highly recommended that you contact us or an attorney in the other jurisdictions to make sure any specific questions you may have that apply to your situation are properly and accurately answered:

http://creativefamilyconnections.com/surrogacy-law-by-state/

Mark has worked with many families, fertility clinics and donor agencies in the Seattle, Bellevue, Kirkland area as well as other cities throughout Washington State and in many other states and countries for more than fifteen years in this area of law.  He has reviewed and drafted agreements for virtually all types of ART situations and he is happy to help to answer your questions and to assist you in preparing a Donor Agreement, a Surrogacy Agreement, Parentage Proceeding and to consult on any other assisted reproduction matter.