22 Apr 2021 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.