Gestational surrogacy, a process in which a woman (the gestational surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents), has become an increasingly common path to parenthood for those unable to conceive or carry a pregnancy themselves. In Washington State, the laws surrounding gestational surrogacy agreements are governed by the Uniform Parentage Act (UPA), which was significantly updated in 2018 to provide more comprehensive and clear guidelines regarding surrogacy arrangements.
Under RCW 26.26A, which is the revised chapter of the Washington UPA that addresses assisted reproduction and surrogacy, gestational surrogacy agreements are fully enforceable contracts provided they meet certain requirements. Key elements include that the gestational surrogate must be at least 21 years old, have previously given birth to at least one child, complete a medical evaluation, and receive independent legal counsel before entering into an agreement. The intended parents also must have their own legal representation and undergo a psychological consultation.
The law mandates that all parties involved must enter into the gestational surrogacy agreement before any medical procedures take place. This contract should outline all terms of the arrangement, including compensation for the surrogate, the legal rights of all parties, and plans for establishing parentage after the child's birth. Notably, in Washington State, gestational surrogates may receive compensation; this distinguishes it from some other jurisdictions that only allow for altruistic surrogacy.
Upon the birth of the child, parentage is established without the need for adoption proceedings. Instead, intended parents can obtain a pre-birth order that becomes effective upon birth, legally recognizing them as the lawful parents. This process helps eliminate potential legal challenges or uncertainties surrounding the recognition of parentage following a surrogate birth.
Washington's approach to surrogacy agreements is seen as progressive and inclusive. It explicitly prohibits discrimination based on marital status or sexual orientation, ensuring that single individuals and LGBTQ+ couples have equal access to gestational surrogacy options. Further emphasizing inclusivity, in 2019, Washington State extended insurance coverage mandates to include coverage for surrogate pregnancies under certain conditions.
To illustrate how these laws operate in practice, consider the case of 'Smith v. Jones' (a fictitious example), where a gestational surrogate entered into an agreement with intended parents who were unable to conceive due to medical reasons. The contract outlined specific terms regarding compensation and parental rights. Upon birth, thanks to their pre-birth order obtained under Washington law, Smith and Jones were immediately recognized as the legal parents without any additional court proceedings.
Washington's legislative framework around gestational surrogacy serves as a benchmark for other states considering similar laws. It provides clarity and protection for all involved parties while promoting an environment of equality and respect for diverse paths to parenthood.