Children are a blessing, or so the
saying goes. However, for many local same-sex couples, as well as some of their
heterosexual counterparts, conceiving biologically isn’t an option. Besides
adoption, a couple may look to a surrogate to help carry a child to term, but
local laws — at times outdated and out-of-step with advances in reproductive
technology — can be another hurdle to overcome for prospective parents.
There are two types of surrogacy:
gestational, where the woman carrying the fetus has no biological relation to
it, and traditional surrogacy, where the woman carrying the fetus donates the
egg used to conceive and is the biological mother of the child. Most family law
practices, particularly those where biological parents would want a “pre-birth
order” — which establishes that the “intended parents,” or those seeking out
the surrogate, will be recognized as legal parents — deal with gestational
surrogacy.
In D.C.,
surrogacy agreements are prohibited, carrying a $10,000 fine or a year in jail.
According to Creative
Family Connections,
a firm specializing in reproductive family law, four other states prohibit
gestational surrogacy agreements: New York, New Jersey, Michigan and Washington
state. In Arizona, Indiana and Nebraska, agreements governing gestational
surrogacy are technically unenforceable, although some courts may grant
parentage orders. The number of states prohibiting couples from obtaining
parentage orders — whether pre- or post-birth — in cases of gestational
surrogacy leaps to 11 states when it involves same-sex couples, and seven more
where surrogacy agreements involving same-sex couples are technically
unenforceable by law, including Virginia.
Although Virginia is considered
friendlier to surrogacy, the Code of Virginia defines “intended parents” as “a
man and a woman, married to each other,” preventing same-sex couples — even
those now legally married — from being jointly recognized as parents. For
heterosexual couples, Virginia’s law also limits any compensation given to a
surrogate to be limited to medical or ancillary expenses, and the surrogate is
recognized as the child’s mother for the first 72 hours after birth — even if
she is not biologically related to the child — until she signs away her
parental rights.
In Maryland,
there is currently no statute governing gestational surrogacy, although the
practice was implicitly approved by the courts in a 2003 case known as In re Roberto d.B. There,
the Maryland Court of Appeals ruled that a trial court had erred when it
refused to allow a gestational carrier to remove her name as the mother from a
birth certificate, even though there was no underlying statute. As a result,
even though Maryland — as well as most other states — currently assumes that
the gestational carrier is the mother, that presumption can be rebutted,
according to Jennifer Fairfax, a reproductive attorney with Family Formation Law Offices in Silver Spring, who works with
gestational surrogates.
Given the hodgepodge of laws within
each state governing surrogacy agreements, local legislators have attempted to
resolve the issue or clarify the law’s stance. In Maryland, where there is
currently no statute, Del. Kathleen Dumais (D-Montgomery Co.) and Sen. Delores
Kelley (D-Baltimore Co.) have separately introduced bills that seek to
establish parentage of the child being born of a gestational surrogate. Fairfax
will be testifying in favor of Dumais’s bill at a Feb. 12 hearing, and a
similar hearing on Kelley’s bill will be held the following week, on Wednesday,
Feb. 18.
In
Virginia, a bill patroned by Sen. Adam Ebbin (D-Alexandria, Arlington, Belle
Haven) that would remove gender-specific references in the Code of Virginia,
putting same-sex couples on par with heterosexual parents in terms of how the
law recognizes their relationship to the child. Ebbin’s bill passed the Senate
last week by a 20-18 vote, but, unfortunately, is likely to be killed in the
House of Delegates, which tabled a similar bill patroned by Del. Marcus Simon
(D-Falls Church, Merrifield, Pimmit Hills) and a bill proposed by Del. Rip Sullivan
(D-McLean, Arlington) that simply asked for a study of what the potential effect of amending
the Code of Virginia to eliminate such gender-specific references would be.
In the District, the D.C. Council
co-introduced the “Collaborative Reproduction Amendment Act of 2015,” which
seeks to legalize both traditional and gestational surrogacy. A similar bill
was introduced in 2013 by then-Councilmember Tommy Wells, who, as chair of the
Committee on the Judiciary and Public Safety, held a hearing where the public
and interested organizations could testify in favor or against the bill. While
most witnesses were supportive of the bill, it encountered opposition from
groups claiming to be concerned about the exploitation of women serving as
surrogates. Following that hearing, the bill was never acted upon, though not
for lack of support from councilmembers.
The current legislation, as drafted,
would treat gestational and traditional surrogates the same under the law,
something that Fairfax has said she has raised with the staff of Councilmember
Kenyan McDuffie (D-Ward 5), the new chair of the Committee on the Judiciary.
“You can’t have a pre-birth order
for traditional surrogacy,” Fairfax says, noting that there is a biological
link between the carrier and child where the surrogate would have to waive her
parental rights. “You have to treat it differently from gestational surrogacy.”
If the Council makes the appropriate
changes, Fairfax expects to testify in favor of the bill when a hearing is held
later this year. If sufficient changes are not made regarding laws governing
traditional surrogacy, she says she’ll testify against it.
Both McDuffie, as chair of the
committee that will hear the bill, and Councilmember Charles Allen (D-Ward 6),
the original sponsor and a former employee of Wells when he was the Ward 6
councilmember, issued statements indicating that the legislation was being
revised to incorporate such fixes.
“As Chair of the Committee on the
Judiciary, I am closely examining the content of the legislation with my staff
and key advocates to ensure all parties are properly protected by the bill’s
language and guidelines,” McDuffie said.
“I’m pleased that the version of the
Collaborative Reproduction Act introduced this year incorporates a lot of
feedback and recommendations from a variety of stakeholders, but still follows
the same inclusive framework to reform an outdated law into something that
respects all families in the District of Columbia,” Allen added.
At the 2013 hearing, some of those
who testified were women who objected to the bill, claiming that it somehow
would lead to the exploitation of women who sign on as surrogates — a
presumption that Fairfax rejects completely.
“I represent gestational carriers,”
she says. “I love when people tell my clients that they’re being exploited.
Most of my clients feel empowered, and have really strong feelings about acting
as surrogates. They’re not being tracked down and forced to do it.”
Fairfax says that the process of
becoming a gestational carrier is complex, highly specific and deals with a
variety of “what-ifs.”
“We look at every single possible
outcome,” she says. “What happens with health coverage, with life insurance,
and what happens if, god forbid, the woman ends up on life support, what
happens to the baby…the contracts are often 50 to 75 pages.”
Fairfax also notes that many of her
clients return to serve as surrogates for other couples. She adds that the
requirements placed on surrogates — that they be over 21 years of age, have
already given birth, and not be receiving any government assistance — rebut
myths that surrogacy will only exploit poor young women who have no other means
of survival.
“Most of the women who do this don’t
need the money,” Fairfax says. “It’s nice to have the money, but that’s not why
they do it. They’ve educated themselves about this. Many of them are married
and already have children of their own. It goes against any argument that
you’re taking advantage of these women.”
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