State Bill Would Provide Clarity in Surrogacy, Family Attorneys Say

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Colorado is on its way to joining a growing number of states that have codified regulation of surrogacy contracts. A March 2 vote in the state House of Representatives gives momentum to an effort to assure both surrogate mothers and aspiring parents a variety of legal protections as the use of proxy birth arrangements becomes more common.

HB 21-1022 was approved on a 43-21 vote, with 40 of 41 Democrats in support and all but three of its 24 Republicans opposed. The measure now moves to the state senate. If adopted there, and if Gov. Jared Polis, as expected, signs the bill into law, Colorado will join nearly a dozen states that have also enacted statutes to regulate surrogacy.

“As more and more families struggle with infertility and as more and more families are created in new ways that maybe don’t lend themselves to traditional biological reproduction, we’re acknowledging that those are loving and wonderful ways that families are being formed,” Rep. Meg Froelich, D-Englewood, and the bill’s sponsor, said. “Along with that goes acceptance of the different paths that people are taking to create those families.

Ellen Trachman, a Denver-based lawyer who focuses on representing parties to surrogacy arrangements and co-owner of a local surrogacy matching program, thinks the bill, if it becomes part of the state’s legal code, will be helpful to the rising number of Colorado parents who are looking to surrogacy. “There’s a significant portion of the population that’s turning to fertility treatments, IVF, [or] other options,” she said.

Laura Koupal, owner of the Koupal Law Firm in Denver and a specialist in representing users of assisted reproductive technologies, also highlighted the rising proportion of Coloradoans who need help from a surrogacy clinic to become parents. She said one in 8 Coloradoans are estimated to experience infertility, and 3% need third-party assistance to have children.

It is not only parents that depend on clear guidance in the law, Trachman said. “The other big thing is that Colorado has some of the best fertility clinics in the world,” she said. “Typically, people are drawn to a certain state for surrogacy because you have high-level fertility clinics,” Koupal said. “Colorado is a well-known destination for assisted reproduction because we have … clinics like the University of Colorado and the Colorado Center for Reproductive Medicine.”

While surrogacy first reached American public consciousness during the 1980s, high-profile disputes have helped to create a slow road to legal coherence. “For most people, the first big splash of commercial surrogacy appearing on the scene in the U.S. was the Baby M case,” said Jennifer Hendricks, a professor at the University of Colorado Law School who specializes in the law of parental rights and the constitutional ramifications of family law. That case involved a dispute in New Jersey in which that state’s supreme court refused to enforce a surrogacy contract but a lower court eventually granted custody of the infant to the married couple who had engaged the surrogate mother. A 1993 California Supreme Court decision in a case called Johnson v. Calvert broke with the New Jersey precedent set five years earlier, ruling that motherhood of a baby conceived via in vitro fertilization and carried to term by a surrogate depends on the intent of the parents who donated the egg and sperm.

During the years since the Baby M and Calvert cases, there have been other highly publicized court fights that have drawn increased legislative attention around the country to the imperative of clarifying rules for surrogacy agreements. In 2012, a Connecticut woman carrying an infant suffering from significant genetic defects refused a request by the child’s mother and father to undergo an abortion and fled the state. She later agreed that the baby could be adopted by a Massachusetts family. A notorious 2013 Wisconsin case has also raised alarms among surrogacy lawyers. In that dispute, a Milwaukee area judge decided that surrogacy is a form of human trafficking and decreed an infant born by a surrogate mother to be an orphan.

The Wisconsin case, in particular, alarmed surrogacy lawyers as well as couples and individuals who may wish to take advantage of assisted reproductive technology to start or grow a family. “Wisconsin is similar to Colorado where the law didn’t have anything specific to surrogacy and yet things had been going smoothly,” Trachman explained. “Judges had been recognizing intended parents. In this unfortunate case [the aspiring parents] were assigned to a judge who had very extreme opinions when it came to surrogacy and he decided that the fathers were not the parent of [the] child, the gestational parent was also not the parent of [the] child, [and] the child was a legal orphan with no parents.”

The Connecticut case has also troubled lawyers. “The hope, the understanding between them, is that [the surrogate] will carry the pregnancy to term and they will become parents and they’ll have this beautiful family,” Trachman said. When the prospect of that outcome becomes less likely, questions about whether the surrogate mother will carry the baby to term or, instead, terminate the pregnancy can arise.

The risk that a surrogate pregnancy with complications can occur is of concern to healthcare providers, who also seek clear guidance in the law. “The other big thing is that Colorado has some of the best fertility clinics in the world,” Trachman said. “Typically, people are drawn to a certain state for surrogacy because you have high-level fertility clinics,” Koupal said. “Colorado is a well-known destination for assisted reproduction because we have … clinics like the University of Colorado and the Colorado Center for Reproductive Medicine.”

Even at a world-class assisted reproduction health center, nature can present complexities. “What happens if there is a genetic defect?,” said Matthew Liao, a professor of bioethics at New York University and director of NYU’s Center for Bioethics. “Who makes the decision?”

Froelich said the concern over how to address potential medical crises during a surrogate pregnancy is a motivation for the bill. “You really want to go into it putting every protection in place so the outcomes are as intended as much as possible,” she said. “It [is] important that [this] space, which is unoccupied by statute, be filled with what we want, which is really good, robust, best practices, proven law.” The measure establishes eligibility criteria for prospective surrogates, guarantees them access to independent legal representation, medical care and mental health services and makes clear that a surrogate mother has the right to terminate a pregnancy or refuse medical treatments.

In addition to handling such contingencies, Trachman said, the bill before the General Assembly provides needed protections to the surrogate mother, the intended parents and the child. HB 21-1022 establishes eligibility criteria for prospective surrogates, guarantees them access to independent legal representation, medical care and mental health services and makes clear that a surrogate mother has the right to terminate a pregnancy or refuse medical treatments. The bill also seeks to ensure that conflicts over parenting rights between surrogates and the intended parents of a child are avoided. In general, it specifies, “the intended parent, or, if there are two intended parents … immediately on birth will be the exclusive parent or parents of the child, regardless of number of children born or gender or mental or physical condition of each child.”

Hendricks thinks the latter provision will be particularly useful as a tool for deciding surrogacy cases, considering that Colorado law does not currently provide unambiguous guidance. “You get into a lot of situations where judges are trying to decide surrogacy cases based on statutes that were written without that in mind at all,” she said. “There will be a statute that says if there’s a genetic test that shows you’re the parent, then you’re the parent, and there’s another statute that says if you give birth to the child, then you’re the parent. Those don’t help resolve a surrogacy case, where the question is who is the mother — the woman who gave the egg or the woman who gave birth?”

Regardless of whether the state Senate further refines the bill’s language, the bill is likely to provide security to no small number of Coloradans. According to the U.S. Centers for Disease Control and Prevention, more than 1,300 infants are born with the help of assisted reproductive technologies involving surrogacy each year. Hendricks thinks that, for the families hoping to join the ranks of those who have already become parents via surrogacy, the bill promises certainty. “Surrogacy has kind of been happening outside the law for a long time,” she said. “Most of the time there aren’t disputes. Most of the time it works out. It does mean that a lot of people are doing it without guidance and without knowing what scenarios they need to think through in terms of planning in advance.”

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