Surrogate motherhood in Columbia

The District of Columbia is very surrogacy unfriendly. But that doesn't mean that residents of DC cannot legally engage in a surrogacy arrangement. Here is the legal background and some practical approaches.

The DC law on surrogacy can be found at Section 16-401 and 402 of the District of Columbia Code. Section 16-401 gives the definitions of such terms as "artificial insemination," "in vitro fertilization," and "surrogate parenting contract." Those terms are defined in the law pretty much the same as they are commonly understood. Section 16-402 sets forth the "prohibitions and penalties." At first blush, they seem straightforward and frightening. The law states: "Surrogate parenting contracts are prohibited and rendered unenforceable in the District.

The nub of the law is that is prohibits surrogacy contracts and seeks to punish anyone who participates in the formation of a surrogate parenting contract for financial compensation.

Does the law mean that a resident of the District may not engage in a surrogacy at all? What about a surrogacy with a relative or close friend in which there is no expectation of financial compensation? Does the law mean that a doctor would violate the law if he or she performs a medical procedure as part of a surrogacy arrangement? What about a psychologist who performs an evaluation or provides counseling to intended parents or potential surrogates as part of a surrogacy arrangement?

The law leaves the above questions, and many others, with no clear answers. Also, no individual has ever been prosecuted for a violation of this law. The law itself may be found unconstitutional in a number of different respects if anyone were to challenge it in court.

If a person is a resident of the District, that individual may legally engage in a surrogacy arrangement, with a surrogacy contract, and a court forum to ensure that the parentage on the birth certificate reflects the intended parents as the parents of the child. To illustrate my point, I'll use a simple example. In the District, gambling casinos are prohibited. Does that mean District residents may not go to a gambling casino? No, District residents may travel to a city such as Atlantic City, Reno, or Las Vegas, and gamble as much as they like.

District residents, like residents of any jurisdiction, may travel to any state and do there what is not legally prohibited. The same is true for District residents with regard to surrogacy. Just because the District is very unfriendly to surrogacy within its little territory, that does not mean that District residents cannot engage in a surrogacy in a friendly state.