PRE-BIRTH PARENTAGE ORDERS
Do courts grant pre-birth parentage orders? Yes, pre-birth parentage orders are available in gestational surrogacy cases under Washington’s new statute. Enforcement of the pre-birth order is stayed until the birth of the child. Pre-birth orders are not available in cases involving traditional surrogacy (called “genetic surrogacy”), however, post-birth orders are available following the expiration of a 48-hour period during which the genetic surrogate may rescind agreement.
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
- Married heterosexual couple using own egg and own sperm: Yes*
- Married heterosexual couple using an egg donor or sperm donor: Yes*
- Unmarried heterosexual couple using own egg and own sperm: Yes*
- Unmarried heterosexual couple using an egg donor or sperm donor: Yes*
- Married same-sex couple using an egg donor or sperm donor: Yes*
- Unmarried same-sex couple using an egg donor or sperm donor: Yes*
- Single parent using own egg or sperm: Yes*
*The statute includes specific requirements for a gestational surrogacy agreement to be entitled to enforcement, including but not limited to: GC must have had a prior pregnancy resulting in the birth of a child but no more than 2 prior surrogacies; GC and IPs must all be at least 21 years old, undergo medical and mental health screening, and have independent legal representation of their choice. If a gestational surrogacy agreement does not comply with these requirements, the court may still enforce the parties’ intent and enter orders regarding the parties’ rights and responsibilities.
Genetic surrogacy (traditional surrogacy) agreements must be validated by the court prior to the commencement of the assisted reproduction. The statute also includes specific requirements for genetic surrogacy agreements.
Also, with respect to any surrogate who resides within the state or has medical procedures within the state, a surrogacy “broker” (an entity who facilitates or is involved in transactions related to the surrogacy agreement) must keep all IP funds in a separate, licensed escrow account; may not be owned or managed, even in part or indirectly, by a lawyer representing any party to the GC agreement or by a health care provider involved in the assisted reproduction; and may not receive any payment, directly or indirectly, from any person licensed to practice law or from any medical provider, in connection with the referral of a party to the surrogacy agreement.
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
- Married heterosexual couple: Yes
- Unmarried heterosexual couple: Yes
- Same-sex couple: Yes
- Single parent: Yes
What are the bases for venue? County where the child resides or is located, county where the Intended Parent resides, county where the Gestational Surrogate resides or is located, or county where a medical evaluation or procedure or mental health evaluation under the GC agreement occurred
Note: Court has exclusive jurisdiction over all matters pertaining to the gestational surrogacy agreement from the time it is executed until 90 days after birth.
Do results vary by venue? No. Parentage petitions, motions and orders must use mandatory forms (which are still in development). Procedure for entering orders will vary from county to county.
Are motions to waive venue accepted? Unknown. Venue requirements are quite permissive.
Is a hearing required to obtain a pre-birth order? Unknown. Some type of hearing will likely be required.
Is a pre-birth order possible in Washington based on a Gestational Carrier’s plan to deliver in Washington, if no party lives in Washington? Yes. Under Section 703, if neither the GC nor the IP live in the state, at least one medical procedure or mental health consultation must occur in the state.
Will Washington Vital Records honor a pre-birth order from another state? Possibly (administrative rule making is underway)
What is the typical time frame to obtain a birth certificate after delivery? Typically a few weeks