Friday, June 21, 2013

DC considers new surrogacy legislation

Surrogacy is a crime in the District of Columbia.   That's likely to change later this year.  Yesterday the DC City Council Committee on Public Safety and the Judiciary held a hearing on a bill that would revoke the ban and regulate surrogacy -- well at least regulate gestational surrogacy.  In my testimony, I urged the City Council to include traditional surrogacy in the new law.  Here's my testimony in full:

Testimony by Nancy D. Polikoff on Bill 20-32

a/k/a “Collaborative Reproduction Act of 2013”

D.C. City Council Committee on Public Safety and the Judiciary

Thursday, June 20, 2013 

Thank you for the opportunity to present testimony on Bill 20-32, both the original bill and the working draft prepared by Committee staff. 

My name is Nancy Polikoff.  I am Professor of Law at American University Washington College of Law, where I have taught Family Law for more than 25 years. I also teach a course on Children of LGBT Parents. I have been a D.C. resident for more than 40 years, and a member of the District of Columbia Bar since 1975.  I have devoted the bulk of my career to the legal issues facing lesbian, gay, bisexual, and transgender families, and especially LGBT parents.  Over the past several years I have worked with the Council of the District of Columbia Committee on Public Safety and the Judiciary on numerous pieces of legislation affecting LGBT families, including the Domestic Partnership Judicial Determination of Parentage Act of 2008.[1]

I unequivocally support the decriminalization of surrogacy in the District of Columbia.

With my limited time today, I would like to focus on two specific points.  I will submit supplemental materials at a later date.  Those points are: 1) gestational and traditional surrogacy should be regulated equally in this legislation; and 2) a woman who bears a child should have a brief period of time after the child is born to assert a claim of parentage. 

Traditional and gestational surrogacy should be regulated equally

The working draft improves original Bill 20-32 by providing detailed requirements and procedures, but it does so only for gestational surrogacy.  It decriminalizes traditional surrogacy, but there are no rules or regulations for implementing traditional surrogacy arrangements.

I strongly believe that gestational and traditional surrogacy should be treated the same. I have three general categories of objection to distinguishing between traditional and gestational surrogacy.  One is conceptual inconsistency with all other LGBT parenting work.  The second is accessibility to the greatest number of intended parents. The third is the health of the woman who will become pregnant.

One: For more than 20 years advocates for lesbian and gay parents have emphasized that genetics is neither necessary nor sufficient to create parentage.  In 2008 and 2009, I worked with this committee on parentage legislation, which the City Council enacted, ensuring that when a lesbian couple plans for a child conceived through donor insemination then both women are the legal parents of that child. The semen donor in such instances is not a parent, absent a written agreement to the contrary. The position that a semen donor is not a parent is consistent with the law in numerous other jurisdictions.  This demonstrates the LGBT family law position that a genetic connection is not sufficient to create parentage. 

In states that do not make it easy for both women to be legal parents, there has been much litigation when a couple’s relationship ends. Unfortunately, the biological mother sometimes claims at that point that she is the child’s only parent, because her former partner lacks a genetic connection to the child. Every national LGBT legal rights organization in the country supports and represents nonbiological mothers against such claims, taking the position that a genetic connection is not a necessary component of parentage.

The only difference between a “traditional” surrogate and a “gestational” surrogate is genetics: the pregnant woman in traditional surrogacy has a genetic connection to the child and the pregnant woman in gestational surrogacy does not.  Legislation facilitating gestational surrogacy but not traditional surrogacy assumes that the experience of gestating a fetus can be the subject of a binding contract, so much so that in most laws, as well as in the working draft of Bill 20-32, the gestational surrogate can never change her mind and assert any claim as a parent of the resulting child.  In other words, from this point of view, gestation is not a sufficient connection to create parentage. 

The District of Columbia has already decided, along with many others jurisdictions, that genetics is not a sufficient connection to create parentage.  A semen donor who decides after conception or after birth that he wants to assert a parentage claim to the resulting child will lose in court.  Our law, as many others, says he is not a parent.  He may have a genuine change of heart.  It does not matter.  He is not a parent.

To be consistent, the genetic connection a traditional surrogate has to a child also cannot be sufficient to create parentage.  Omitting traditional surrogacy from legislation may reflect a belief that a traditional surrogate’s acts of gestating the fetus, when added to her genetic connection, create a claim to parentage that cannot be the subject of contract. But this belief can only be premised on the conclusion that gestation adds something of legal consequence to her genetic connection.  But the premise of enforceable gestational surrogacy agreements is that gestation cannot give rise to a claim to legal parentage.

Either gestating a fetus until birth is an act of caregiving that creates a claim of parentage or it does not.  I believe that it does, as I will get to in a moment.  But those who say it does not, and still want to distinguish between traditional and gestational surrogacy, are taking a position on the importance of the woman’s genetic connection to the fetus she gestates that flies in the face of over 20 years of advocacy on behalf of same-sex couples raising children.

If there were no downsides to omitting traditional surrogacy, perhaps the above inconsistency could rest in the domain of theoretical, academic interest.  But there are two significant downsides, to which I now turn.

            Two: The accessibility issue is simple.  Gestational surrogacy, whose costs easily exceed $100,000, is limited to the richest among us.  The intended parents must pay the medical costs of extracting eggs from an egg donor, creating embryos in vitro, and inserting those embryos into the gestational surrogate. They also must pay the egg donor for her eggs. Those who do not have the wealth to pursue this form of assisted reproductive technology want children and can be good parents. A gay male couple of modest means (as well, of course, as an infertile heterosexual couple) should have the ability to plan for and create a child using the same low-cost method that a lesbian couple uses:  insemination of a woman with semen from a man. 

            I would add the following.  People are using traditional surrogacy to have children and will continue to.  The only issue before this committee is whether the law of the District of Columbia will give those people clear guidance and procedures, creating more predictable outcomes for families and children.  I support the eligibility requirements for the parties in the working draft of Bill 20-32 and believe they should be extended to the parties to a traditional surrogacy contract.  Even though some people will continue to conceive children without fulfilling the eligibility requirements and other criteria, that is no reason to abandon those couples who are more than willing to follow prescribed procedures but cannot afford gestational surrogacy.  With no such regulation in place, every time a gay male couple wants to conceive and raise a child, and that couple cannot afford gestational surrogacy, they are on their own, as is the woman who agrees to help them become parents.  I do not believe the City Council should leave to their own devices that portion of this city’s population.

             Three:  For a woman who wishes to carry and gestate a fetus for intended parents, traditional surrogacy requires less medical intervention, with fewer attendant risks, than does gestational surrogacy.  If a woman is willing to be a traditional surrogate, telling her she must undergo these interventions makes her submit to procedures that are invasive and unnecessary.

A woman who bears a child has a claim as a parent of that child

            When a surrogacy arrangement works as clearly intended, by parties who have met the relevant eligibility criteria, the intended parents are the child’s legal parents.  The advantage of surrogacy legislation is that it streamlines the process for all who deal with the parties, including the Vital Records office, so that accurate legal documentation of the child’s parentage is created.  The intended parents are the child’s legal parents and no adoption proceeding is necessary to establish that.

But legislation must also address what happens if there is a dispute among the parties.  The working draft of Bill 20-32, as is common, provides for specific performance of an agreement that meets the requirements of the law.  Of paramount importance is the inability of the surrogate to assert a claim of parentage of the child she gives birth to.

Unlike gamete donation of either egg or sperm, gestation requires acts of caring for a growing fetus.  I believe those acts entitle that caregiver, the pregnant woman, to claim parentage of the resulting child. Let me be clear that I believe that properly screened surrogates, who have previously given birth and who satisfy a mental health professional that they are suitable for the task, are highly unlikely to change their minds.  In fact, I believe that those involved in the surrogacy process will take extraordinary care in selecting surrogates – as reputable agencies do now – if the consequence of selecting without that care is a broken contract.  The most desirable outcome of a surrogacy contract is that all involved will fulfill the terms of their agreement.[2]

I do believe it is reasonable to hold a surrogate to her agreement to relinquish the child unless she makes her position known at the time of the child’s birth or shortly thereafter.[3]  The child is entitled to stability, and a surrogate loses any claim to be a parent, whether she has a genetic connection to the child or not, once that time has passed.  If the surrogate does assert parentage, the intended parents nonetheless remain parents of the child, and if there is no agreement among the parents, custody would be determined by the Superior Court according to the best interests of the child.

I would close by saying that if this committee disagrees with my position on the parentage claim of a surrogate, I nonetheless believe that traditional and gestational surrogacy should be treated alike under this legislation.  If specific performance is an appropriate remedy for a gestational surrogacy contract, it is an appropriate remedy for a traditional surrogacy contract as well.

I look forward to working with this committee to develop the best possible surrogacy legislation for the District of Columbia.  Thank you for the opportunity to testify on this important legislation.            

[1] I would like to thank Lauren Nussbaum, WCL Class of 2014, for our discussions in which I developed some of the views I express herein (which are not entirely consistent with her own).
[2] Even with surrogacy unlawful in the District of Columbia, couples living in the District of Columbia have used surrogates in other jurisdictions to have children.  One of the earliest second-parent adoptions in DC, in the early 1990s, was a gay male couple who had a child using a surrogate. There was no disagreement among the parties, and the surrogate relinquished all parental rights in the proceeding in which the genetic father’s male partner adopted the child.
[3] I am aware of two states that have such provisions.  Florida (for traditional surrogates only) provides a 48 hour period.  New Hampshire (which does not allow donor eggs but does allow surrogacy using the egg of the intended mother or the surrogate) provides for a 72 hour period. In the case of a birth without complications, even 24 hours should be sufficient.

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