Surrogacy Law in Washington
Washington Surrogacy Law: Types of Surrogacy
Effective as of January 1, 2019, Washington’s new Uniform Parentage Act, RCW 26.26A, permits gestational and genetic surrogacy. The new parentage statute recognizes surrogacy agreements and pre-birth orders under certain conditions. The statute enumerates certain requirements that apply to both gestational and genetic surrogacy, such as:
- At least one party must be a WA resident, and if there is no WA resident, then at least one medical evaluation/procedure/mental health consultation required by the surrogacy agreement must occur in WA.
- Each intended parent, the surrogate, and the surrogate’s spouse must be parties to the surrogacy agreement.
- The intended parent(s) and the surrogate must have separate legal representation.
Traditional (genetic) surrogacy is called “genetic surrogacy” in Washington and is permitted under the new statute. The statute includes specific requirements for genetic surrogacy agreements to be enforceable. Genetic surrogacy agreements must be validated by the court prior to the commencement of the assisted reproduction. Pre-birth orders are not available in cases involving genetic surrogacy.
Are There Surrogate Requirements in Washington?
The state of Washington has specific requirements in order to execute a gestational surrogacy agreement to serve as a Surrogate:
- You must be at least 21 years old.
- You must have given birth to at least one child but not enter into more than two surrogacy agreements that result in the birth of children.
- You must complete medical screening and a psychological evaluation.
- You must have independent counsel, separate from the intended parents.
Does Washington Surrogacy Law Allow for Pre-Birth Orders?
Parentage Orders: Courts in Washington grant pre-birth orders for gestational surrogacy; enforcement of the pre-birth order is stayed until the birth of the child. Pre-birth orders are not available for genetic surrogacy.
The conditions under which intended parents could be declared legal parents with a pre-birth order for gestational surrogacy are listed below:
The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:
Married heterosexual couples, using their own egg and own sperm
Unmarried heterosexual couples, using their own egg and own sperm
Married heterosexual couples, using a sperm or egg donor
Unmarried heterosexual couples, using an egg or sperm donor
Same sex couples, whether married or unmarried, using an egg or sperm donor
Single parents using own egg or sperm and an egg or sperm donor
Parentage orders are issued for both gestational and genetic surrogacy. For gestational surrogacy, parentage orders can be obtained before, on, or after the birth of the child. For genetic surrogacy, a parentage order can be obtained post-birth upon proof of a court order validating the genetic surrogacy agreement. If a gestational surrogacy agreement does not comply with these requirements, the court may still enforce the parties’ intent and enter orders regarding the parties’ rights and responsibilities.
Whose names go on the birth certificate in Washington?
Parents will be listed on the birth certificate as “parent” and “parent.”
An international same-sex male couple can most likely obtain a birth certificate listing the biological father and gestational surrogate as parents, but the circumstances have not yet been tested under the new statute. A later amended version can list the two fathers as the legal parents. It can be expedited by the child being born in state if the gestational surrogate lives in Washington. Alternatively, a second-parent adoption could be obtained out of state and then documented in WA to update the birth certificate.
Surrogacy Conditions for Same-Sex Couples in Washington
Conditions are favorable for same-sex couple to use a surrogate in Washington. 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 Washington?
Yes, marriage is not a requirement under the statute so unmarried couples are treated the same as married couples.