IFLG - Colorado Passes State’s First Surrogacy Law - Rich Vaughn

Colorado Passes State’s First Surrogacy Law

Colorado is poised to sign into law the state’s first comprehensive surrogacy statute, establishing requirements for legally enforceable surrogacy.

Surrogacy law in the United States varies widely from state-to-state, from “surrogacy-friendly” states such as California, where intended parents can obtain court orders of parentage even before their baby is born, to restrictive states such as Utah, where unmarried couples or single intended parents are prohibited from participating is gestational surrogacy, to states where surrogacy is illegal such as Michigan.

Until now, Colorado has been one of the majority of U.S. states that currently have no surrogacy law on the books; in such states, courts typically rely upon established case law.

Sponsored by State Representative Meg Froelich and State Senator Joann Ginal, the Colorado bill, which has passed the legislature and is on its way to Democratic Governor Jared Polis for signature, creates the "Colorado Surrogacy Agreement Act.” The act establishes eligibility and criteria for surrogacy agreements and authorizes court orders recognizing and enforcing surrogacy agreements. Additionally, the act declares that “parental rights and duties vest immediately on the birth of the child exclusively in each intended parent” and that “the surrogate and the surrogate’s spouse or former spouse, if any, are not the parents of child.” The act further directs the Colorado Department of Public Health and Environment or the State Registrar to “designate each intended parent as parent of the child” on the child’s birth certificate.

Our colleague, Colorado surrogacy attorney Judith Hoechst, with whom I worked in crafting the American Bar Association’s Model Act Governing Assisted Reproduction 2019, testified before a Colorado Senate committee in support of the new law. Hoechst told senators that, after years of trying to conceive, several miscarriages, and the difficult birth of her daughter, she was forced to turn to a surrogate in order to have a second child, as reported by Denver’s CBS4. But she was concerned about the lack of legal protections under Colorado law. “For that reason I chose a surrogate in California because it had very good surrogacy statutes in place,” Hoechst said.

Colorado Surrogacy Agreement Act Mirrors ABA Model Act

The new Colorado law is based closely on the ABA’s Model Act Governing Assisted Reproduction 2019, which aims to provide a uniform template for state lawmakers to use. As we wrote of the Model Act in 2019:

The newly ratified Model Act adds newly defined terms and updated language throughout to make the act neutral as to gender and sexual orientation. It establishes baseline best practice standards and eligibility requirements for all types of surrogacy for the safety of all participants in assisted reproduction. The new act updates parental establishment provisions for gestational surrogacy to reflect current practice and, for the first time, addresses traditional / genetic surrogacy, which was not addressed at all in 2008 Model Act, including parental establishment provisions for traditional / genetic surrogacy as well.

Unlike several surrogacy laws passed recently in other states, the Colorado bill mirrors the ABA Model Act, as well as provisions of the Uniform Parentage Act, in including provisions not only for gestational surrogacy, but also for genetic, or traditional, surrogacy, in which the surrogate also contributes the egg(s) in addition to carrying the child.

Many New State Laws Ignore Genetic or 'Traditional' Surrogacy

Genetic surrogacy became highly controversial more than three decades ago, after the notorious  “Baby M” case, in which a genetic surrogate refused to relinquish custody of the baby girl she gave birth to, in violation of her agreement with the baby’s intended parents—the biological father and his wife. The case, which dominated international headlines for weeks, created a political backlash, motivating several states to either impose surrogacy bans or deem surrogacy agreements legally unenforceable, creating effective bans.

Only recently have those bans, for the most part, been eliminated. New York’s Parent-Child Security Act, which took effect in February 2021, establishes criteria for surrogacy agreements, allows compensation for the surrogate and establishes a “surrogate’s bill of rights.” However, unlike the Colorado bill, the New York law, like many of the recent surrogacy laws, and like California’s (in effect since 2013) does not address genetic (traditional) surrogacy.

The reasons are clear: Due in part to the notoriety of the “Baby M” scandal and a handful of other cases, many state lawmakers became wary of tackling the issue. Gestational surrogacy, in which the surrogate is not genetically related to the child she gives birth to, was believed to create fewer potential ethical and emotional pitfalls. Theoretically, a surrogate who is genetically unrelated to the baby is less likely to refuse to relinquish custody of the child than one whose own genetic material is used—a belief reinforced by the “Baby M” drama.

In genetic surrogacy, conception can occur via in vitro fertilization (IVF), in which the embryo is created outside the body in an expensive, time-consuming process, or via intrauterine insemination, which is quicker and cheaper. Some people even undertake home insemination.

For all those reasons, lawmakers often have chosen to avoid addressing genetic surrogacy at all. Better to leave the complex determination of parentage to the courts, the thinking goes.

Families Created by Genetic Surrogacy Need Legal Protection, Too

But just because the law fails to address genetic surrogacy doesn’t mean it goes away. People continue to participate in genetic surrogacy all the time, and those families and surrogates need legal protection just as much as those participating in gestational surrogacy. In the absence of statutory guidelines, the courts are left to render their own best judgments, potentially leading to inconsistent outcomes and unequally applied standards.

Colorado’s surrogacy bill, if signed into law as expected, will eliminate that inconsistency and confusion and ensure that those engaging in surrogacy in Colorado have the right to determine, in consultation with their doctors, what type of family-building technologies—including what type of surrogacy arrangement—are right for them and their families.

We are still a long way from having uniform surrogacy laws throughout the U.S.—a goal of efforts such as the ABA Model Act. But, thanks to the courage of Colorado lawmakers, we have a great new example for effective, comprehensive and common-sense legislation for other states to follow.

If you have questions about gestational surrogacy or genetic/traditional surrogacy, we invite you to contact IFLG’s experienced team of surrogacy law professionals.

Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Toni Hughes
TONI BOONE
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

KIM DEVEREAUX
Paralegal

Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.