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D.C. Debates Reversing Ban On Surrogacy Agreements

City Only Place In U.S. To Prohibit Agreements

D.C. is the only jurisdiction in the U.S. to completely ban surrogacy agreements.
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D.C. is the only jurisdiction in the U.S. to completely ban surrogacy agreements.

The D.C. Council heard testimony late last week on legislation that would reverse a ban on surrogacy agreements that has been in effect for two decades.

Surrogacy is permitted under existing D.C. law, but surrogacy agreements—which outline the legal responsibilities and clarify parenting roles—are punishable by a $10,000 fine or a year in prison.

According to surrogacy advocates, D.C. is the only jurisdiction in the U.S. that has a blanket prohibition on the agreements, forcing couples to travel to states with more flexible laws.

A bill introduced earlier this year by Council member David Catania (I-At Large) and changed by Council member Tommy Wells (D-Ward 6) would allow D.C. residents above the age of 21 to enter into surrogacy agreements after both the genetic parents and gestational carrier completed medical and mental health evaluations. Additionally, the genetic parents would agree to pay medical expenses, and the gestational carrier would surrender any rights to raise the child.

During a Council hearing on Friday, surrogacy advocates said that the agreements would allow parents unable to conceive on their own the chance to produce and raise children.

"It simply doesn't seem fair that residents... can't take advantage of this family-building service," said Peter J. Wiernicki, an attorney who has been unable to represent D.C. couples seeking to enter into surrogacy agreements. In Virginia the agreements are allowed if certain conditions are met, while in Maryland they are permitted by case law, though not statute.

Surrogacy is especially important for same-sex couples that can legally wed in D.C., testified Rick Rosendall, president of the Gay and Lesbian Activists Alliance. "The District, which was ahead of the national curve in enacting civil marriage equality, must catch up with the new ways by which many families in our city are formed," he said.

But opponents of the agreements urged the Council to maintain its ban on the practice, saying that surrogacy agreements could lead to the exploitation of women and the commercialization of reproduction.

"If you care about women... you must not support their exploitation as disposable commodities," said Kathleen Sloan, a consultant to the Center for Bioethics and Culture, which has advocated against loosening surrogacy laws in various states.

"Surrogacy is the cause... of life-long pain," said Jessica Kern, a Virginia resident who was given up as part of a surrogacy agreement. She said she spent nine years searching for her birth mother.

Despite some public opposition, all 13 members of the Council have co-sponsored the bill, indicating that it will likely pass if and when it comes to a vote. Changes could still be made to the bill, including how long a gestational carrier would have to claim herself as the parent of a child.

Nancy Polikoff, a law professor at American University, testified that gestational carriers should be given 24 hours from the time of birth to decide if they want to remain the parent of the child.

"Unlike gamete donation of either egg or sperm, gestation requires acts of caring for a growing fetus. I believe those acts entitle that caregiver, the pregnant woman, to claim parentage of the resulting child," she testified.

Polikoff, who supports legalizing the agreements, also said that the bill should contemplate traditional surrogacy, under which the woman carrying the child is also its genetic mother.

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