Having My Baby: Surrogacy in Colorado

• Publication year: 2002
• Pages: 103

31 Colo.Law. 103 Colorado Lawyer 2002.

2002, January, Pg. 103. Having My Baby: Surrogacy in Colorado

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103

Vol. 31, No. 1, Pg. 103

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 103]

Specialty Law Columns
Family Law Newsletter
Having My Baby: Surrogacy in Colorado
by Kimberly R. Willoughby, Alisa A. Campbell

This article serves as a guide for the Colorado practitioner on some of the legal issues involved when representing a party to a surrogacy situation

This month's article was written by Kimberly R Willoughby, Denver, Willoughby Law Firm, LLC—(303) 839-1770 and Alisa A. Campbell, Denver, Willoughby Law Firm LLC—(303) 839-1770.

Surrogacy is playing an increasingly large role in how Americans achieve the age-old dream of creating families. Surrogacy describes the situation in which a woman gestates a child for another and turns over the baby to the intended parent or parents at the time of birth. This article describes surrogacy, analyzes Colorado and national laws concerning surrogacy, and describes the role of Colorado practitioners in aiding clients involved in using surrogacy to create a family.

Growing Role of
Surrogacy

Individuals such as single fathers, infertile couples, and same-sex couples who historically had adoption as the only means of creating a family now have another option. Surrogacy is often seen as preferable to adoption because it can result in a child who is genetically related to one or both intended parents. In addition, surrogacy can be less expensive than adoption and can allow the intended parent more control over the process of creating a family.

It is likely that thousands of Americans have used surrogacy in the last decade to create families.1 Although technology has certainly contributed to the incidence of surrogacies, use of surrogates as a way to deal with a woman's infertility has been described in the Old Testament as far back as the story of Abraham and Sara.2 Today, surrogacy has become so accepted that it is regularly written about in the popular press.3 Moreover, agencies that help parents-to-be by locating and screening surrogates can be found in at least sixteen states in the United States, including Colorado.4 Approximately twenty-five such agencies can be found in California alone.5

The growing incidence of children created by surrogate arrangements and other alternative reproductive technologies has prompted the Family Law Section of the American Bar Association to draft the Model Assisted Reproductive Technology Act of 1999.6

Types of Surrogacy Arrangements

With traditional surrogacy, also referred to as "egg donor surrogacy," the surrogate supplies the egg as well as the womb. Therefore, the resulting child is genetically related to the surrogate. The sperm may be provided by the intended father or by a sperm donor.

With gestational surrogacy, also known as IVF surrogacy or in vitro fertilization, the surrogate mother is not genetically related to the child. Both intended parents of the opposite sex may create an embryo with their egg and sperm. The embryo then is implanted in the womb of the surrogate mother, or "gestational carrier," for gestation. Other variations of gestational surrogacy include: (1) sperm provision by the intended father; (2) sperm donation, where the intended mother's egg is fertilized with donor sperm and implanted in the surrogate; and (3) embryo donation, where none of the parties involved (surrogate, intended mother, and intended father) may be genetically linked to the child.

Statutory Law Addressing Surrogacy

Some states have statutory law regulating surrogacy. However, Colorado has no such statutory law.7 The statute that comes closest to addressing the issue is CRS § 19-5-212, which forbids the giving, receiving, or charging of money or other consideration in connection with the relinquishment or adoption of a child. Therefore, the Colorado practitioner who handles matters involving surrogacy arrangements should be familiar with the statutory and case law of other jurisdictions.

Any type of surrogacy contract is void and unenforceable under statutes in Arizona, Indiana, the District of Columbia, and North Dakota.8 Surrogacy contracts involving compensation to the surrogate are void and unenforceable under Kentucky, Nebraska, Utah, and Washington statutes.9

Michigan's statutes make all surrogacy contracts void, and criminalize the creation of these contracts where compensation to the surrogate is involved.10 A participating party to a Michigan surrogacy contract for compensation is guilty of a misdemeanor and can be fined up to $10,000 and imprisoned for up to one year.11 A person other than a participating party who induces, arranges, procures, or otherwise assists in the formation of a surrogacy contract in Michigan is guilty of a felony, can be fined up to $50,000, and can be jailed for up to five years.12

Florida permits contracts for surrogacy, which are called Pre-planned Adoption Agreements. However, under Florida's statute, the surrogate's consent to place her child with the intended parents is not binding until seven days after the birth of the child, during which time the surrogate may rescind her consent.13

Surrogacy is legal in West Virginia.14 Virginia, New Hampshire, and Arkansas have, by far, the most comprehensive statutes regarding surrogacy. Virginia allows surrogacy contracts,15 although it is a class 1 misdemeanor for any person or entity to recruit or procure surrogates, or to otherwise arrange or induce intended parents and surrogates to enter into surrogacy contracts.16

New Hampshire statutes allow surrogacy contracts, but only where all parties are medically pre-screened and counseled before the surrogate is impregnated. The surrogacy arrangement also must be pre-approved by a judge.17 No person or entity may induce a party to enter into a surrogacy agreement for payment.18

Arkansas may have the most surrogate-friendly statutes of all fifty states. A child born as the result of a surrogacy contract automatically is assumed to be the child of the intended parents. A stepparent adoption is not required if only one of the intended parents is the biological parent of the child; both intended parents' names are put on the Arkansas birth certificate. In cases where an intended parent is not married, only his or her name is put on the birth certificate. If a controversy ensues, the language of the surrogacy contract prevails.19

Case Law Addressing
Surrogacy

No Colorado appellate court has addressed the issue of surrogacy. However, on the national level, the seminal surrogacy case is known as the Baby M. case, which was decided in 1988.20 In that highly publicized New Jersey case, the intended parents entered into a surrogacy contract with Mary Beth Whitehead. In this egg donor (traditional) surrogacy, Whitehead's egg was to be fertilized with the intended father's sperm. She was paid a fee, and she agreed to gestate the child and deliver the baby to the intended parents at birth.

Immediately after the birth of Baby M., Whitehead found she could not part with the child and ran with the baby to another state. The intended parents brought suit against her seeking to enforce the surrogacy contract. The New Jersey Supreme Court invalidated the surrogacy contract, calling it "illegal, perhaps criminal, and potentially degrading to women."21 The Court viewed the surrogacy contract as a private placement adoption, in which money exchanged hands, and the biological mother had to irrevocably agree to surrender the child before birth. Neither situation is permissible under New Jersey's laws involving private placement...