Surrogacy Ban Lifted in the District of Columbia

Victoria Ferrara

6/30/17

Known as one of the more progressive districts in the country, Washington D.C. promotes a favorable environment for LGBT couples. However, although the District of Columbia was one of the first jurisdictions to allow same-sex couples to marry, their ban on childbirths through surrogacy has made it extremely difficult for both same-sex couples and couples with pregnancy challenges to have children of their own outside of adoption. 

This antiquated law, which was first instilled in 1993, made the District of Columbia one of the only places in the U.S. that viewed contracting with a surrogate as a criminal offense �?? and one that was punishable by up to one year in jail and/or a $10,000 fine.  The ban made it both expensive and restrictive for couples in D.C. to have a child through surrogacy, and those who wanted to needed to travel out of state and hire multiple lawyers to help them navigate through the complicated surrogacy environment. Furthermore, the ban restricted women from becoming surrogate mothers and restricted infertility and IVF medical clinics from conducting embryo transfers for surrogacy arrangements.

However, on April 7 of this year, there was a huge turn of events, as the District's Congressional Council enacted into law the Collaborative Reproduction Amendment Act of 2015 which revoked the ban on surrogacy contracts in D.C. and provided guidelines for surrogacy agreements. Although this was a huge cause for celebration for the LGBT community as well as surrogacy advocates in the D.C. area,  it has been a long and arduous battle up to this point.

In fact, the bill had been revised multiple times since 2013 before it was finally released to the full Congressional Council in November of 2016. Owner and Founder Diane Hinson of surrogacy law firm Creative Family Connections, LLC responded to the lift on the surrogacy ban in the Washington Blade, saying:

"It is a great day for reproductive rights that the nation's capital now allows all parents to build their families through surrogacy. It's a good day for surrogacy in general and for rights in general and for LGBT reproductive rights in particular."

Now that the ban on surrogacy contracts has been revoked, the District of Columbia has created a truly conducive environment for both same-sex couples and couples dealing with pregnancy challenges to have children of their own.

The law that now permits surrogacy agreements in D.C. provides guidelines to both the surrogate and the intended parents, streamlining and regulating the surrogacy process. It states that a woman who is over the age of 21 and has already given birth to at least one child of her own can become a gestational surrogate. In addition, both the surrogate and the IPs must go through independent legal counsel as well as undergo a psychological evaluation under this new law. This helps create an ideal partnership between a committed surrogate and the right-fit intended parents.

Enacted along with a handful of other statutes that create a more conducive environment for surrogacy, the law further provides a more streamlined process for the intended parents, allowing them to secure their parental rights during the pregnancy which will become effective at the birth. Although D.C. is late to the game in allowing surrogacy agreements, they are committed to creating an environment that will foster a positive working relationship between the two sides.

The District of Columbia has seen intensive growth of the LGBT community, and has now paved a clear path for those same couples whose marital rights they have supported to finally have children through surrogacy. This is certainly an occasion to be celebrated, as the new law will help lift the legal and financial burden for intended parents who have a surrogacy birth in D.C., making it easier for them to find a firm, match with a surrogate, and ultimately have a child of their own. 

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