District of Columbia Surrogacy Law
By: James Shrybman,
Attorney at Law
OUCH! The District of Columbia is very surrogacy unfriendly.
But that doesn't mean that residents of DC cannot legally engage in a surrogacy
arrangement. Here is the legal background and some practical approaches.
The DC law on surrogacy can be found at Section 16-401 and 402 of the District of Columbia
Code. Section 16-401 gives the definitions of such terms as "artificial
insemination," "in vitro fertilization," and "surrogate parenting
contract." Those terms are defined in the law pretty much the same as they are
commonly understood. Section 16-402 sets forth the "prohibitions and penalties."
At first blush, they seem straightforward and frightening. The law states: "Surrogate
parenting contracts are prohibited and rendered unenforceable in the District. Any person
or entity who or which is involved in, or induces, arranges, or otherwise assists in the
formation of a surrogate parenting contract for a fee, compensation, or other
remuneration, or otherwise violates this section, shall be subject to a civil penalty not
to exceed $10,000 or imprisonment for not more than 1 year, or both."
The nub of the law is that is prohibits surrogacy contracts and seeks to
punish anyone who participates in the formation of a surrogate parenting contract
for financial compensation.
Does the law mean that a resident of the District may not engage in a surrogacy at all?
What about a surrogacy with a relative or close friend in which there is no expectation of
financial compensation? Does the law mean that a doctor would violate the law if he or she
performs a medical procedure as part of a surrogacy arrangement? What about a psychologist
who performs an evaluation or provides counseling to intended parents or potential
surrogates as part of a surrogacy arrangement?
The law leaves the above questions, and many others, with no clear answers. Also, no
individual has ever been prosecuted for a violation of this law. The law itself may be
found unconstitutional in a number of different respects if anyone were to challenge it in
court.
If a person is a resident of the District, that individual may legally engage in a
surrogacy arrangement, with a surrogacy contract, and a court forum to ensure that the
parentage on the birth certificate reflects the intended parents as the parents of the
child. To illustrate my point, I'll use a simple example. In the District, gambling
casinos are prohibited. Does that mean District residents may not go to a gambling casino?
No, District residents may travel to a city such as Atlantic City, Reno, or Las Vegas, and
gamble as much as they like.
District residents, like residents of any jurisdiction, may travel to
any state and do there what is not legally prohibited. The same is true for District
residents with regard to surrogacy. Just because the District is very unfriendly to
surrogacy within its little territory, that does not mean that District residents cannot
engage in a surrogacy in a friendly state.
The District is totally surrounded by surrogacy friendly states. Surrogacy is not
prohibited in Virginia, West Virginia, or Maryland. West Virginia is approximately an hour
from anywhere in the District. Virginia and Maryland are only minutes away from anywhere
in the District.
Although surrogacy is legal in Virginia, the law provides many legal hoops through which
intended parents must jump. The required hoops add considerable extra time
and expense to the process.
West Virginia is one of the most favorable surrogacy states in the
country. But it only allows residents to adopt in its courts which can be a problem for a
District couple who did an artificial insemination surrogacy, and then wants to file an
adoption by the intended mother to adopt the surrogate's "half," so to speak.
Many District residents, who want to engage in a surrogacy, do so in Maryland, which is
the most friendly. There is no law about surrogacy in Maryland. The legal requirements for
a surrogacy are the terms found in the surrogacy contract, to which both parties are
legally bound. If the surrogate is a resident of Maryland, the intended mother in an
artificial insemination surrogacy may file in Maryland court for adoption, even if she is
a resident of the District or any other state. If District residents engaged in a
gestational surrogacy, and the surrogate, regardless of her residence, gave birth in
Maryland, the intended parents, regardless of their
residence in the District or any place else, may petition the Maryland court to order that
the child's birth certificate reflect the intended parents as the parents of the child.
These legal provisions in Maryland also apply as well to a gay or lesbian surrogacy or
adoption.
The right to procreate is a right guaranteed to residents of all states in our nation. The
District is no exception, regardless of its unfriendly surrogacy law. But to avoid any
possible legal hassles down the road, District residents involved in a surrogacy should do
so with one party who lives and gives birth a few miles away in Virginia, West Virginia,
or most preferably in Maryland.
May 2001
Copyright 2001. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
The information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.
Email: TASC@surrogacy.com Disclaimer