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Is Surrogacy Legal in Colorado?

Surrogacy Law in Colorado

Colorado Surrogacy Law: Types of Surrogacy

Effective as of May 6, 2021,Colorado has surrogacy-supportive law codifying best practices. Among others, these include protections for intended parents and surrogates, such as independent Colorado-licensed legal counsel for each side and the right to terminate the agreement without penalty at any time the surrogate is not pregnant. Colorado law is supportive of single intended parents in addition to couples and LGBTQ+ intended parents. The law is clear that an intended parent is not required to be genetically related to the child to receive recognition under that statute as a parent.

Traditional (genetic) surrogacy in Colorado is permitted and treated identically to gestational surrogacy under the law.

Are There Surrogate Requirements in Colorado?

Yes. Pursuant to C.R.S. §19-4.5-104(1) To execute an agreement to act as a gestational surrogate or genetic surrogate, an individual must:

  • be at least twenty-one years of age;
  • previously have given birth to at least one child;
  • complete a medical evaluation related to the surrogacy arrangement by a licensed medical doctor;
  • complete a mental health consultation by a licensed mental health professional; and have independent legal representation of their choice by an attorney licensed in this state throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement

Does Colorado Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Yes, pre-birth orders determinative of parentage are specifically authorized under Colorado law. Post-birth orders might be recommended by the home country ART attorney or other attorney to affirm relinquishment of the child and to affirm non-parentage of the surrogate and her spouse. These are also supported by Colorado law. ART attorneys in Colorado prepare documents to petition the court for a determination of parentage beginning at or around 14 -18 weeks of fetal gestational age.

 

For pre-birth orders, the conditions under which intended parents can be declared legal parents if at least one parent is genetically related to the child are listed below:

Yes

  • Married heterosexual couples, using their own egg and own sperm
  • Married heterosexual couples, using their own egg and own sperm
  • Married heterosexual couples, using an egg or sperm donor
  • Unmarried heterosexual couple using an egg or sperm donor
  • Married same sex couples
  • Unmarried same sex couples
  • Single parent using own egg or sperm

No

n/a

For pre-birth orders, the conditions under which intended parents can be declared legal parents if neither parent is genetically related to the child are listed below:

Yes

  • Married heterosexual couples
  • Married heterosexual couples
  • Married same sex couples
  • Unmarried same sex couples
  • Single parent

No

n/a

Parental presumption is the concept that when a married woman gives birth, her spouse is the child’s other legal parent. In Colorado, the parental presumption applies to create presumptive legal rights to a child for the spouse of the woman giving birth, whether the couple is same-sex or heterosexual. Colorado law states that a man is presumed to be the “natural father” of a child if he receives the child into his household and openly holds the child out as his natural child, if he and the child’s mother are married when the child is born or if the child is born within 300 days after the marriage is terminated, or if the child is the product of assisted reproduction. Colorado’s law has not been updated since the recognition of marriage equality and still uses gender-specific language, but the statutes explicitly allow for declarations of Maternity and for “Father” to mean “Mother” as appropriate and, further, Colorado courts have held that these “parental presumptions” apply equally to married same-sex couples.

A “second-parent adoption” allows a second parent (a non-biologic parent) to adopt a child who has a sole legal parent. In other words, this process allows a non-biological or non-birth parent to establish their legal rights as a legal parent. In a second-parent adoption the sole legal parent does not lose any parental rights, so the child is entitled to or has gained the benefits of having two legal parents. Colorado law allows second-parent adoption by a “specified second adult.” There is no requirement of marriage, and the statute is written in gender-neutral terms. Thus, in Colorado, second-parent adoptions are available to married and unmarried same-sex couples. Colorado courts require a home study report and a background check to be completed in a petition for a second-parent adoption. Upon a successful petition, the court will issue an adoption judgment, which must be recognized every state throughout the U.S.

A “step-parent adoption” is the legal adoption of a child by the spouse or partner of a child’s custodial legal parent. In Colorado, same-sex spouses or partners who are married or joined in a civil union may petition to adopt their spouse/partner’s child as a stepparent. The child’s custodial parent must consent to the adoption and any other non-custodial parent must have relinquished the parent-child relationship voluntarily or through court order. A home study is not typically required.

The primary difference between a second-parent and stepparent adoption in Colorado is that the petitioning parent does not have to be in a legal relationship with the child’s legal parent for a second- parent adoption, but, in a stepparent adoption, the petitioning parent must be in a marriage or civil union with the legal parent.

Whose names go on the birth certificate in Colorado?

Intended parents can choose the designation under which they are named on their child’s birth certificate as “mother and mother,” “father and father,” “parent and parent,” or “mother and parent.”

Surrogacy Conditions for Same-Sex Couples in Colorado

Conditions are favorable for same-sex couple to use a surrogate in Colorado.  Same-Sex couples are treated the same as heterosexual couples under the statute and they can be married or unmarried and use their own genetics and/or donors

Are There Options for Unmarried Intended Parents in the state of Colorado?

Yes, marriage is not a requirement under the statute so unmarried couples are treated the same as married couples.

Egg Donation Law

Colorado Revised Statutes §19-4-106 applies to both sperm and egg donation used in assisted conception by a husband and wife and gives the intended parents the designation of mother or father; the donor does not retain parental rights. However, the statute requires the supervision of a licensed physician or advanced practice nurse

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in Colorado*

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.