State Laws and Legislation

Washington Surrogacy Law

Summary: Washington allows uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.

Explanation: Washington statutes specify that compensated surrogacy arrangements are void and unenforceable as against public policy. Furthermore, such agreements are punishable as a gross misdemeanor. The law recommends that should a custody dispute arise between the surrogate mother and the intended parents, a court should resolve the matter by utilizing a multi-pronged balancing test, largely based upon the child’s relationship with each parent. A parent-child relationship can be established by a valid surrogate parentage contract or an affidavit and physician’s certificate wherein an egg donor or gestational surrogate (a surrogate who has no genetic relationship to the child) sets forth her intent to be the legal parent of the child. A 1989 opinion from the Attorney General confirmed this assessment of state law, and it also indicated that a surrogate parenting agreement is not enforceable if the surrogate withdraws her consent to relinquish her child before a court has approved that consent.

In 2005, the Washington Supreme Court decided the case of In re Parentage of L.B. , which concerned a lesbian couple who separated after they had a child through artificial insemination. The Court determined that the partner who was not genetically related to the child had standing to argue that she was a de facto parent of the child. Although this case did not involve a surrogacy agreement, it shows that the Washington courts are willing to at least consider granting equal parental rights to LGBT individuals and couples.

There is no explicit prohibition in Washington on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals from adopting a child of their same-sex partner.

Citations: WASH. REV. CODE § 26.26.101 (2009); WASH. REV. CODE §§ 26.26.210 et seq. (2009); 1989 Op. Wash. Att'y Gen. No. 4 (Feb. 17, 1989), 1989 Wash. AG LEXIS 41.

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Updated: Wed, September 09, 2009 - 11:00:16