Testimony by Nancy D. Polikoff on
Bill 20-32
“SURROGACY PARENTING AGREEMENT aCT OF 2013”
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.
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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