Change in Washington Law Will Allow for Paid Surrogates

Having a child is an ultimate life joy, but not everyone is capable of building their family without assistance. Surrogacy can provide a wonderful option for these families. Surrogate pregnancy means a woman other than an intended mother carries the pregnancy to term. In Washington State, however, the use of surrogacy has been very limited because it has only allowed altruistic surrogacy, meaning a surrogate who carries the child without compensation. However, starting January 1st, the state of Washington will allow compensation to surrogates, opening this option to many more families.

Under the old Washington law on surrogacy, compensation for surrogate parentage was strictly prohibited. If a person made an agreement to compensate a surrogate, not only was the contract void but it was also a gross misdemeanor. Even if the contract was executed in another state where such arrangements are perfectly valid, the contract would be unenforceable in Washington.

Starting next year, however, the state will make it possible for people to pay to have surrogates carry and deliver their babies. While the previous law, Revised Code of Washington (RCW) 26.26 explicitly called such contracts “contrary to public policy,” the new statute, RCW 26.26A will allow for paid surrogacies under certain conditions.

There are conditions for both the surrogate and the intended parents. Both the surrogate and intended parents must be at least 21 years old and have been evaluated for physical and mental health. The surrogate must also have given birth at least once outside of a surrogacy arrangement, and if the surrogate is married their spouse must be a party to the agreement.

It is also required that both the surrogate and the intended parties have independent legal representation. The intended parents must pay for the surrogate’s representation by an attorney of her choice.

As is often the case, when a law is revised, or a new law is introduced, the results can be somewhat unpredictable. Seattle based attorney Joyce Schwensen, who has been practicing family law for nearly 35 years and is familiar with surrogate issues, was quick to point out a potential issue with the new law before it even goes into effect. Under RCW 26.26A.705, the number of times a woman may act as a surrogate is limited. Ms. Schwensen, however, points out that the odd wording of the law could be interpreted to mean that a potential surrogate must not have entered into more than two prior surrogacies that resulted in the birth of a child or children. To put it another way, it could be argued that the law allows a woman to enter into a maximum of three surrogacy contracts instead of two.

Another important point is that the new law contains a provision that allows for the surrogate to make all health and welfare decisions regarding herself and her pregnancy, including exercising any rights she has right to terminate the pregnancy. Ms. Schwensen points out that some intended parents want to have complete control of the pregnancy and this particular provision of the law might be distressing to such people.

Even with some remaining uncertainties, the net effect is that the law will give people who need assistance in building their families more options to have a baby. It is an exciting change in the law for many of these families.