Making the decision to grow your family is an exciting one! Building a family is a unique journey for each individual and couple. These days, creating families isn’t just a “one size fits all” approach. With advancements in technology, changing cultural norms, new priorities, career trends, and new forms of communication powered by the internet, there are more options than ever for people looking to grow their family. Although the definition of “family” continues to evolve, the challenges remain real and the need to provide alternatives for those desiring to grow their family is blind to race, ethnicity, sexual orientation, and gender. Despite COVID-19, building families continues to be a beacon of light for many.
From adoption to advancements in science and the growing trend toward and acceptance of assisted reproduction technologies (ART) including surrogacy, IVF, sperm, egg and embryo donations, those desiring to have children have more options available to them than ever before. Here’s a look at the legal perspectives for each option.
Surrogacy, both gestational and traditional, is one avenue available to those desiring to grow their family. In a nutshell, the difference between the two is a traditional surrogate is genetically related to the baby she will give birth to, whereas gestational surrogates have no genetic relationship. From a legal perspective, surrogacy laws can be complex and confusing because there is no federal law regulating surrogacy. Each state determines how they are going to handle surrogacy within their borders and each has their own approach. Many countries continue to have outright bans on surrogacy, and there are still a few states where surrogacy is not recognized and surrogacy contracts are illegal. If you are an intended parent, you can be an intended parent in any state; however, the laws in the state where the surrogate lives, and where the child will be born, are of paramount concern.
Oregon has long been a surrogacy friendly state, despite there being no formal laws in Oregon related to surrogacy. Because of its progressive nature, Oregon attracts couples and individuals, from a wide variety of backgrounds and places--including internationally, who may not have surrogacy as an option in their home state or country. Besides being friendly to the actual surrogacy process, another plus for intended parents is that Oregon, in the vast majority of cases, permits pre-birth orders which allow intended parents to be legally recognized as the child’s parents prior to birth.
Washington is quickly following in Oregon’s footsteps as a surrogate “friendly” state. Prior to January 1, 2019, Washington only allowed unpaid surrogacy, limiting many close to home options for those facing infertility.
Highlights of Washington’s new Uniform Parentage Act include:
- Elimination of the ban on paid surrogacy;
- Important safeguards for surrogates and the children who are born from this arrangement;
- A restriction on the number of times a women can be a gestational surrogate to two;
- A Requirement that both the surrogate and intended parents have legal representation throughout the process; and,
- Allows intended parents to be treated as the child’s legal parents prior to birth but puts a hold on the order until the child is born.
Washington’s new law is a game changer for intended parents in the Pacific Northwest who desire to use surrogacy as their chosen method by allowing them to be more involved in the process, from conception to birth.
With the guidance of an experienced surrogacy professional, intended parents and surrogates, will be able to navigate the surrogacy process from start to finish in both Oregon and Washington. The relationship built between a surrogate and intended parents is best managed with a detailed and comprehensive contract to ensure both parties clearly understand their relationship and the obligations between them.
For example, surrogacy contracts should include important provisions that set for agreements on the following:
- Health insurance coverage for the baby and the surrogate;
- Termination of a pregnancy;
- Carrying multiple pregnancies;
- Selection of providers;
- Life insurance;
- Testing for genetic or birth defects during pregnancy; and
- What happens after the birth of the baby.
EGG DONATION, SPERM DONATION OR EMBRYO DONATION
Surrogacy is only one of the assisted reproductive technology (ART) options available to those looking to expand their family. Many also turn to in vitro fertilization, sperm donation, egg donation, or embryo donation to help them fulfill their dreams of being a parent. The decision to use a donor may be for a variety of reasons, including: medical disorders, to avoid passing down inherited diseases, advanced maternal age, in the case of same sex couples, or for individuals desiring to be a parent.
Reputable sperm, egg, and embryo donation banks have strict qualifications and screening processes for their donors. Which include thorough family history, and medical and psychological evaluations. Oregon law is clear that a donor has no right or obligation to a child born as a result of in vitro fertilization, sperm/egg/embryo donation nor does a child born from ART have a right, obligation or interest with respect to the donor. Washington’s new law has followed suit, however with limited exceptions. Those looking at the option of using donated genetic material should be mindful that while in the past such donations provided a cloud of anonymity, genetic testing through sites such as 23andMe and Ancestry has opened the door for these donations to no longer have the privacy that was once desired or expected.
Although assisted reproductive technology may fit for some, it is not the only avenue for those wanting to expand their family. Adoption is another great option for:
- A single person;
- An unmarried couple;
- A married couple;
- A gay person; or
- A same sex couple.
A person can adopt:
- A stepchild;
- A relative; or
- A person unrelated to them.
Adoption orders in Oregon requite the following:
- Either the adoptive parent, the child or the relinquishing parent must be a resident of Oregon for at least 6 months; and
- Children age 14 and over must consent to their own adoption.
Adoption in Oregon is available through:
- Private Agency;
- Public Agency; or
- Independent adoption in which a child is adopted directly from a birth parent with the assistance of an attorney.
Some families may want to consider adopting a child from a foreign country. International adoptions are exceedingly complex because they involve state law, federal law, the law of the country where the child was born, and in most instances The Hague Convention on Intercountry Adoption. If you are interested in adopting a child from a foreign country, finding and working with a reputable agency that focuses on international adoptions from your desired country and an attorney that is well versed in this area of law is imperative.
In Oregon, adoption agencies are licensed by the Oregon Department of Human Services and must meet high professional and ethical standards, and it is illegal in Oregon to operate an adoption agency without a license. Adoption laws can be complicated, no matter what type of adoption you may be considering, it is important to ensure compliance with state and federal guidelines. Using a reputable adoption agency and an attorney who is experienced in adoptions will help you navigate this complex process with ease and confidence.
Adding another member to your family—no matter what avenue you choose is a transformative experience for everyone involved. We know first-hand that this life-changing process is unique for everyone. For nearly 40 years, Gevurtz Menashe have been providing counsel to families during some of the most pivotal transitions in life, including creating and growing families. If you are planning to welcome a new addition into your family and you have questions, we are here to help. Feel free to give us a call at 503-227-1515, or schedule a consultation online.
Authored by family law attorneys, Emily Roberts and Brooke Ferris. Both are licensed in Oregon and Washington and focus their practice exclusively on family law issues such as divorce, parenting and custody issues, child and spousal support—as well as providing legal support to families who are exploring adoption, surrogacy contracts and assisted reproductive technology (ART) support.