Idaho Passes Protective Surrogacy Law

(Image via Getty)

You might not have known, but Idaho is a good place to find women who are willing to be surrogates for individuals who want to grow their families. Yet, paradoxically, Idaho law has been less hospitable to surrogacy arrangements than other states' laws, leading to instances where the legal process has been cumbersome and lacking in safeguards. That's about to change, for the better. On July 1, 2023, the newly signed Idaho House Bill 264, "The Gestational Agreements Act," takes effect.

What Took So Long, Idaho?

I spoke with Idaho assisted reproductive technology legal expert Monica Cockerille about the need for the new law. She explained that while the Gem State does not have the largest population, it is a state with a high rate of volunteerism, including those wishing to help others become parents. Cockerille sees many Idaho gestational surrogates -- especially from the nursing and other medical and social work fields -- coming forward to help others. And while we are not talking about thousands of gestational surrogacies a year, Cockerille estimates about 10 to 20 surrogacy births occur each month in the state.

Streamlined Legal Process; Elimination Of Additional Adoption

While Cockerille was not behind the drafting of the new bill, she worked hard to support it, educating lawmakers as to its importance. She explained that without an Idaho statute on point, judicial interpretation of current parentage laws has made the surrogacy process especially cumbersome for many hopeful parents and gestational surrogates.

Cockerille explained that while Idaho courts have been able to recognize genetic parents in a fairly straightforward process, not every case is easy. For instance, with a nongenetic parent (which is the case for any couple also turning to the help of an egg donor or sperm donor), these folks have been required to also go through a post-birth adoption process. Often that can mean additional legal mechanics in the parents' home state or country, and then later efforts all the way back in Idaho to correct a child's birth certificate. For international parents, especially, this can be a difficult process, augmented with bureaucratic obstacles within Idaho's vital records system, poorly equipped to analyze and interpret varying foreign adoption orders.

The new law provides a simplified process, similar to that in Utah, where the intended parent or parents enter into an agreement prior to attempting a pregnancy. The legal agreement must be submitted to an Idaho court for verification that it meets the requirements of the law. Then, immediately after birth of the child, notice is filed to the court of the birth, and an order is issued permitting the intended parents to be legally recognized as the child's parents (regardless of genetic connection) and to be named directly on the birth certificate. Goodbye, expensive and time-consuming additional adoption process!

Safeguards For The Parties

The new law mandates that all parties enter into a gestational agreement prior to attempting pregnancy. The agreement must include required safeguards.

• Legal counsel. First and foremost, each party is entitled to and must retain legal counsel for the gestational agreement. So lawyers, this benefits you too! Cockerille explained that an early draft of the bill left surrogates paying for their own attorneys or without counsel if they were unable to pay for one. She worked to revise the bill to meet current best practices, including that each party have independent legal counsel and that the surrogate's attorney may be paid for by the intended parents, with all parties waiving the related conflict of interest.
• No traditional surrogacy. A traditional surrogacy (also called "genetic surrogacy") arrangement involves a surrogate who is also genetically related to the child she is carrying for the parent(s). It is a less common form of surrogacy due to technological medical advancements and the legal questions surrounding surrogates being related to the baby that they carry. These arrangements are not permitted under the new law, providing that "neither the gestational carrier nor her spouse may contribute gametes for use in assisted reproduction under the gestational agreement."
• No public assistance. The law sets minimum requirements that a gestational carrier must be at least 21 and have given birth to another child at least once before. Additionally, the law provides that a "prospective gestational carrier may not be receiving public assistance as defined in section 56-201, Idaho Code." Cockerille explained that the specific statutory reference disqualifies potential gestational carriers who are receiving certain types of governmental financial support -- such as food or rental assistance -- but does not disqualify a potential gestational surrogate whose children may be on Medicaid. Cockerille explained that most surrogacy-matching organizations (generally referred to as "agencies," but not subject to government regulation like adoption agencies) as a best practice already disqualify a potential gestational carrier if she is on public assistance. This is to increase the chance that the gestational carrier is financially stable, and decrease the optics of any economic coercion.
• Termination of agreement without penalty before pregnancy. The new law provides that any party to a gestational agreement may terminate the agreement at any time prior to the gestational carrier becoming pregnant. And there are added protections for termination of the contract: "Neither the gestational carrier nor her spouse shall be liable to any intended parent for terminating a gestational agreement" before pregnancy occurs. While intended parents may pay a significant amount related to a potential gestational carrier before the pregnancy -- such as agency costs, medical and psychological clearance costs, legal fees, etc. -- they cannot penalize the surrogate or compel her to pay such costs back, as the price of changing her mind about moving forward with the potential pregnancy.
• Protections for all parties. The law provides basic protections for all parties. The new law requires that every intended parent accept all rights and duties of a parent for any child conceived under the terms of a gestational agreement. And the gestational agreement can never validly limit the right of the gestational carrier to make decisions to safeguard her health, or that of an embryo or fetus she is carrying.

Legal counsel. First and foremost, each party is entitled to and must retain legal counsel for the gestational agreement. So lawyers, this benefits you too! Cockerille explained that an early draft of the bill left surrogates paying for their own attorneys or without counsel if they were unable to pay for one. She worked to revise the bill to meet current best practices, including that each party have independent legal counsel and that the surrogate's attorney may be paid for by the intended parents, with all parties waiving the related conflict of interest.No traditional surrogacy. A traditional surrogacy (also called "genetic surrogacy") arrangement involves a surrogate who is also genetically related to the child she is carrying for the parent(s). It is a less common form of surrogacy due to technological medical advancements and the legal questions surrounding surrogates being related to the baby that they carry. These arrangements are not permitted under the new law, providing that "neither the gestational carrier nor her spouse may contribute gametes for use in assisted reproduction under the gestational agreement."No public assistance. The law sets minimum requirements that a gestational carrier must be at least 21 and have given birth to another child at least once before. Additionally, the law provides that a "prospective gestational carrier may not be receiving public assistance as defined in section 56-201, Idaho Code." Cockerille explained that the specific statutory reference disqualifies potential gestational carriers who are receiving certain types of governmental financial support -- such as food or rental assistance -- but does not disqualify a potential gestational surrogate whose children may be on Medicaid. Cockerille explained that most surrogacy-matching organizations (generally referred to as "agencies," but not subject to government regulation like adoption agencies) as a best practice already disqualify a potential gestational carrier if she is on public assistance. This is to increase the chance that the gestational carrier is financially stable, and decrease the optics of any economic coercion.Termination of agreement without penalty before pregnancy. The new law provides that any party to a gestational agreement may terminate the agreement at any time prior to the gestational carrier becoming pregnant. And there are added protections for termination of the contract: "Neither the gestational carrier nor her spouse shall be liable to any intended parent for terminating a gestational agreement" before pregnancy occurs. While intended parents may pay a significant amount related to a potential gestational carrier before the pregnancy -- such as agency costs, medical and psychological clearance costs, legal fees, etc. -- they cannot penalize the surrogate or compel her to pay such costs back, as the price of changing her mind about moving forward with the potential pregnancy.Protections for all parties. The law provides basic protections for all parties. The new law requires that every intended parent accept all rights and duties of a parent for any child conceived under the terms of a gestational agreement. And the gestational agreement can never validly limit the right of the gestational carrier to make decisions to safeguard her health, or that of an embryo or fetus she is carrying.

Congratulations to Idaho! The new law shows recognition of the modern ways that families are being formed, and that state legislators are stepping up to protect parents, surrogates, and children.

Now if we can only get Michigan -- the only remaining state in the country to actually criminalize compensated surrogacy arrangements -- to follow suit!

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.