Legislation Ends Decades-old Ban on Surrogacy Contracts in DC

Early one Saturday morning, attorney Diane Hinson received a frantic text from international clients David and John.[1] The intended dads were terrified about a message they had just received from their gestational carrier, Jennifer. She was 24 weeks pregnant and having pre-term contractions.

Hinson is the owner and founder of Creative Family Connections LLC, a top-rated surrogacy agency based in Chevy Chase, MD – purposely located steps outside the DC boundary. Jennifer had gone to the closest Maryland hospital, but her obstetrician wanted her transferred to a better-equipped DC hospital. Jennifer’s well-being and the health of the baby she was carrying for David and John were not Hinson’s only concerns that day. Because surrogacy contracts were illegal under the DC surrogacy statute, the fear that Jennifer would deliver the baby in DC hurtled Hinson into action. Thanks to Hinson’s quick work, Jennifer was transferred to a reputable hospital in Maryland. She continued to carry her pregnancy and baby Julia is now at home with her dads, healthy and happy.

Without Hinson’s intervention – she threatened to file a temporary restraining order against the hospital to prevent Jennifer’s transfer to the DC hospital – John’s and David’s parentage rights would have been at risk; and Jennifer, the parents and everyone else involved in the surrogacy contracts (including Hinson!) could have been fined and jailed under DC’s surrogacy statute.

No intended parent should have to live with the fear that David and John experienced that Saturday morning. Now, they won’t have to because today DC’s new surrogacy statute takes effect. Under the new law, the Collaborative Reproduction Amendment Act of 2016, surrogacy and surrogacy contracts are explicitly authorized and best practices are required.

Under DC’s antiquated surrogacy statute, all participants in a surrogacy contract were subject to fines of $10,000 and jail time of one year. The law was so broad that it even prohibited non-compensated or compassionate surrogacy contracts.

The DC ban on surrogacy contracts affected not just DC prospective surrogates but all surrogates living in the metro area. Gestational carriers who lived in Maryland and Virginia were restricted from traveling into DC from the 24th week of pregnancy onward in the contracts that Creative Family Connections attorneys prepare for its clients. This posed a significant challenge for the many residents of the metropolitan DC area who pass through all three jurisdictions during the course of an average day.

Surrogacy is now legal, and surrogacy contracts are enforceable in the District. The bill sets guidelines for parents and surrogates entering into surrogacy arrangements, and advises how the intended parents should establish their parentage rights.

The first version of a statute to change the old DC law was introduced in 2013. Hinson was the first of many witnesses to testify before the DC Council at a hearing on the bill. Creative Family Connections works with parents from across the U.S. and abroad, and with gestational carriers from all over the nation – but only in jurisdictions where surrogacy is legal. Since it was founded in 2001, CFC has not accepted any gestational surrogate candidate from the District. Today, that policy changes, to the delight of both women who want to be surrogates and prospective parents living in DC.

“The District has a track record of being a national leader in providing equal rights for all its residents,” Hinson said. “It was one of the first jurisdictions to permit same-sex couples to marry. Yet, its antiquated surrogacy law has impeded their ability to have children.”

Showing the Council members Creative Family Connections’ 50-state surrogacy map, Hinson demonstrated just how out-of-sync DC was with the rest of the country. DC was not only one of the few “red-light” states, it had the harshest statute in the nation.

Hinson worked hard with other colleagues in the metropolitan area on the new statute, and she was one of a few people to hammer out the language that the Council ultimately voted into law. Creative Family Connections has immediately – and happily — revised its heavily relied on interactive state-by-state map to reflect this new statute:  The District’s law has moved 180 degrees, from the toughest of the “red-light” states to a dark “green light” state, signaling that gestational surrogacy is now permissible in all cases in which the statute’s requirements are followed.

“I founded Creative Family Connections on the principle that ‘everyone can build a family’,” Hinson said. “Throughout these many years, I have eagerly awaited the day when the District – our nation’s capital — would finally address this inequity and put itself in its rightful place as a leader and protector of equal rights for all of its residents.”

That day has finally arrived.

[1] Names have been changed to protect their privacy.