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AGO 1989 No. 4 - February 17, 1989
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

SURROGATE PARENT AGREEMENTS ‑- CHILDREN ‑- PARENT AND CHILD ‑- ADOPTION ‑- PARENTAL OR SPOUSAL CONSENT ‑- DEPARTMENT OF SOCIAL AND HEALTH SERVICES 

1.         Surrogate parent agreements in general are not unlawful in Washington. 

2.         It is not lawful for a person, in return for money or other valuable consideration, to serve as a broker or otherwise arrange or facilitate a surrogate parenting agreement, unless the person is an agency certified or licensed by the Department of Social and Health Services as a child-placing agency or as an adoption agency, or unless the only payment is reimbursement or prenatal hospital or medical expenses involved in the birth of the child, or attorneys' fees and court costs involved in transfer of child custody. 

3.         A surrogate parenting agreement is not enforceable against a surrogate mother who withdraws her consent to relinquish her court approval of the consent.

                                                              - - - - - - - - - - - - - 

                                                                February 17, 1989 

Honorable Dennis Braddock
State Representative
342 House Office Building
Olympia, WA 98504

Cite as:  AGO 1989 No. 4                                                                                                                  

 Dear Representative Braddock:

             You have requested our opinion on the legal effect of what are commonly referred to as "surrogate parenting" agreements.  Specifically, you set forth a scenario in which a woman ("surrogate") agrees to be artificially inseminated with the sperm of a man whose wife is unable to have children.  The surrogate also agrees to relinquish all rights to the child born as a result of the arrangement.  Such an agreement provides for the man ("father") and his wife to pay medical expenses related to the pregnancy and a fee to the surrogate when the child is relinquished to them.  Afterward, the father's wife institutes adoption proceedings to adopt the child.  The parties to this agreement may be brought together by a fertility clinic,  [[Orig. Op. Page 2]] attorney, or other entity, which typically is also paid by the father and his wife.

                                                                    QUESTIONS

             We paraphrase your questions as follows:

             1.         Is the surrogate parenting agreement as described above lawful in Washington?

             2.         It it lawful in Washington for any person, in return for payment of money or other valuable consideration, to serve as a broker or otherwise arrange or facilitate a surrogate parenting agreement?

             3.         If such a surrogate parenting agreement is lawful, is it enforceable against the surrogate if she withdraws her consent to relinquish the child?

                                                                BRIEF ANSWERS

             1.  The Washington Legislature has not specifically prohibited surrogate parenting agreements.

 2.  A payment to a broker or facilitator would be illegal unless the broker is an agency certified or licensed by the Department of Social and Health Services as a child-placing agency or as an adoption agency, or unless the payment is only for prenatal hospital or medical expenses involved in the birth of the child, or attorneys' fees and court costs involved in effectuating the transfer of child custody.

 3.  A surrogate parenting agreement is not enforceable if the surrogate withdraws her consent to relinquish her child before court approval of the consent.

                                                                BACKGROUND

             Scores of articles have been written since the late 1970's on the subject of surrogate parenting.  Increasing infertility, a decreasing number of infants to adopt, and advances in the technology of reproduction have led medicine and the law into areas never before considered.  See Comment,Baby-Sitting Consideration:  Surrogate Mother's Right to "Rent Her Womb" for a Fee, 18 Gonz. L. Rev. 539, 540-42 (1982/83); Comment, The Fate of Surrogacy in Louisiana:  The Effect of Louisiana Revised Statute 9:2713, 34 Loy. L. Rev. 125, 126-31 (1988).  A recent, highly publicized case,In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988), has sparked further debate on the subject and serves as the basis for your inquiry.

              [[Orig. Op. Page 3]]

                                                                      ANALYSIS

 Question 1

             Is the surrogate parenting agreement as described above lawful in Washington?

             The Washington Legislature has not specifically addressed the surrogate parenting agreement.  ("Surrogate parenting agreement" as used in this discussion will refer to the set of facts you posed in your inquiry.)  Absent a specific legislative declaration on the subject, we must examine relevant statutes and case law to determine the legal effect of such an agreement.

             RCW 26.26 [chapter 26.26 RCW], the Uniform Parentage Act, sets forth rebuttable presumptions of parentage.  Under RCW 26.26.040, a man is presumed to be the natural father of a child if:

                       (5) He acknowledges his paternity of the child in a writing filed with the registrar of vital statistics, who shall promptly inform the mother of the filing of the acknowledgement, and she does not dispute the acknowledgement . . . .

             RCW 26.26.050 addresses the issue of artificial insemination:

                         (1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.  The husband's consent must be in writing and signed by him and his wife. . . .

                         (2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of the child thereby conceived unless the donor and the woman agree in writing that said donor shall be the father. . . .

             Under these statutes, if a surrogate were artificially inseminated with the father's sperm, paternity in the father would be presumed only if the father and the surrogate filed the required written acknowledgements and agreements.  RCW 26.26.040(5), .050(2) [26.26.050(2)].  If the surrogate were married, however, RCW 26.26.040(1) would create a conflicting presumption that the surrogate's husband is the natural father.  To have the sperm-donor father be presumed the natural father under the law, it appears a married surrogate would have to comply with RCW 26.26.050(2),and the surrogate's husband would have to withhold  [[Orig. Op. Page 4]] written consent to the artificial insemination, as well as file written consent to the father's acknowledgement of paternity.  A surrogate parenting agreement, therefore, can be constructed to comply with these statutes.

 Question 2

            Is it lawful in Washington for any person, in return for payment of money or other valuable consideration, to serve as a broker or otherwise arrange or facilitate a surrogate parenting agreement?

             We next examine whether the payment of a fee by the father and his wife to the surrogate upon relinquishment of the child is legal.  RCW 9A.64.030 provides:

                         (1) It is unlawful for any person to sell or purchase a minor child.

                         (2) A transaction shall not be a purchase or sale under subsection (1) of this section if any of the following exists:

                         (a) The transaction is between the parents of the minor child; or

                         (b) The transaction is between a person receiving or to receive the child and an agency recognized under RCW 26.33.020 [the adoption statute]; or

                         . . .

                         (f) The only consideration paid by the person receiving or to receive the child is intended to pay for the prenatal hospital or medical expenses involved in the birth of the child, or attorneys' fees and court costs involved in effectuating transfer of child custody.

             Some state courts have invalidated surrogacy agreements because they constitute "baby selling" prohibited by applicable legislation.  See, e.g.,In re Baby M,supra;Doe v. Kelley, 106 Mich. App. 169, 307 N.W.2d 438 (1981),cert. denied, 459 U.S. 1183, 74 L.Ed.2d 1027, 103 S. Ct. 834 (1983).  Washington's child-selling statute, however, specifically excludes transactions between the parents of the child.  Thus, if the father and surrogate establish parentage pursuant to RCW 26.26 [chapter 26.26 RCW], a transaction between them concerning their child is not illegal.

              [[Orig. Op. Page 5]]

             The legality of payment of a fee to a broker or facilitator of the surrogate agreement is less easily analyzed.  RCW 9A.64.030 allows payment to an agency recognized under the adoption statute.  The adoption statute defines "agency" as any public or private association, corporation, or individual licensed or certified by the Department of Social and Health Services as a child-placing agency under RCW 74.15 [chapter 74.15 RCW] or as an adoption agency.  RCW 26.33.020(7).  RCW 74.15 [chapter 74.15 RCW] defines "agency" to include any person, firm, partnership, association, corporation, or facility which receives children or expectant mothers for care or which places, arranges the placement of, or assists in the placement of children for adoption.  RCW 74.15.020(3).  "Agency" does not include licensed physicians or lawyers.  RCW 74.15.020(4)(h).  Thus, if the broker or facilitator were licensed or certified as above, the child-selling statute apparently would not be violated.

             Even if the broker or facilitator were not certified or licensed under RCW 74.15 [chapter 74.15 RCW], or if the father and the surrogate fail to establish parentage under RCW 26.26 [chapter 26.26 RCW], the child-selling statute would not be violated if the only consideration paid by the person receiving the child is to pay for medical expenses, attorneys' fees, and court costs involved in making the transfer of child custody.  The Louisiana Attorney General has opined, under a statute similar to RCW 9A.64.030(2)(f), that payment to a broker may constitute the sale of a minor child if the broker profits from the adoption process.  Op. La. Att'y Gen. No. 83-869 (Oct. 18, 1983).

             Therefore, to determine whether any particular surrogate parenting agreement violates RCW 9A.64.030, the child-selling statute, the terms of the specific agreement must be examined.  If the terms fall within one of the exceptions to the child-selling statute, the agreement does not violate that law.

             We conclude existing statutes do not necessarily bar a surrogate parenting agreement.

 Question 3

             If such a surrogate parenting agreement is lawful, is it enforceable against the surrogate if she withdraws her consent to relinquish the child?

             We now address the enforceability of a surrogate parenting agreement against a surrogate who withdraws her consent to relinquish her child.  To analyze this question, we examine RCW 26.33 [chapter 26.33 RCW], the adoption statute.  The intent of the Legislature is:

             Adoptions should be handled efficiently, but the rights of all parties must be protected.  The guiding  [[Orig. Op. Page 6]] principle must be determining what is in the best interest of the child  . . . [T]his chapter [is to] be used only as a means for placing children in adoptive homes and not as a means for parents to avoid responsibility for their children unless the department, an agency, or a prospective adoptive parent is willing to assume the responsibility for the child.

 RCW 26.33.010.

             Adoption in Washington is a two-phase procedure.  First, parental rights are terminated, by consent or otherwise.  Second, the court enters a decree of adoption in favor of the adoptive parent or parents.  RCW 26.33.030et seq.

             Under a surrogate parenting agreement, the surrogate agrees to relinquish the child and to consent to adoption, even before the child is conceived.  RCW 26.33.080(2) provides that a parent "may file with the court a petition to relinquish a child to the prospective adoptive parent."  RCW 26.33.080(3) provides that "[a] petition for relinquishment, together with the written consent to adoption, may be filed before the child's birth."

             The requirements of a written consent to adoption are enumerated in RCW 26.33.160(4):

                         The written consent to adoption shall be signed under penalty of perjury and shall state that:

                         (a) It is given subject to the approval of the court;

                         (b) It has no force or effect until approved by the court;

                         (c) The consent will not be presented to the court until forty-eight hours after it is signed or forty-eight hours after the birth of the child, whichever occurs later;

                         (d) It is revocable by the consenting party at any time before its approval by the court. . . .

                          . . . .

 Pursuant to the Legislature's expressed intent that "the rights of all parties must be protected" in the adoption process, the Legislature has declared a parent may revoke consent to adoption until that consent is approved by the court, no sooner than 48 hours after the child's birth.  Id.

              [[Orig. Op. Page 7]]

             Parties must comply with adoption procedures, which are strictly statutory.  In re Parsons, 76 Wn.2d 437, 457 P.2d 544 (1969).  An adoption, however, will not be invalidated on technical grounds.  In re Santore, 28 Wn. App. 319, 623 P.2d 702, review denied, 95 Wn.2d 1019 (1981).  While, in general, a party to a contract may agree in the contract to waive statutory rights or decline to take advantage of a privilege given to the party by a statute declaring public policy, a party may not be bound or be held to a contract which denies a right the law allows on public policy grounds. Whitaker v. Spiegel, Inc., 95 Wn.2d 661, 623 P.2d 1147, 637 P.2d 235,appeal dismissed, 454 U.S. 958, 70 L. Ed. 2d 374, 102 S. Ct. 496 (1981);Grandview Inland Fruit Co. v. Hartford Fire Ins. Co., 189 Wash. 590, 66 P.2d 827 (1937); 17 C.J.S. Contracts § 207 (1963).

             InBryant v. Cameron, 473 So. 2d 174 (Miss. 1985), an unwed mother sought to regain custody of her child surrendered to a childless couple.  The couple alleged the mother had agreed the couple could adopt the child in exchange for the couple's payment of the mother's medical expenses.  The court stated regarding the alleged agreement entered into during the mother's pregnancy:

                         The advance assurances said to have been given by [the mother]  . . . are of no legal force and effect.  By law valid and enforceable consent to adoption may be given by the natural parentonly after three days have elapsed following the birth of the child.  Miss. Code Ann. § 93-17-5 (1972).  Any consent to adoption, verbal or otherwise, given prior to that time is legally ineffective.  Where our law requires a written agreement or acquiescence regarding a matter before a party may become bound and sets forth the manner, form or timing within which such agreement must be made to be valid, any agreement not conforming to that facility is unenforceable.  This is so whether an individual is seeking to make a will, to bind himself to an agreement covered by the statute of frauds, or to agree to the adoption of his or her child.

 Id. at 177-78.

             InSurrogate Parenting Assocs. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986), the Attorney General of Kentucky sought to revoke the charter of a surrogate parenting agency on grounds of public policy.  The court refused to revoke the charter, but discussed surrogate agreements in general:

             The surrogate mother's consent given before five days following birth of the baby is no more legally binding than the decision of an unwed mother during her pregnancy that she will put her baby up for adoption.  [[Orig. Op. Page 8]]  The five days' consent feature [in the Kentucky statutes] take precedence over the parties' contractual commitments, meaning that the surrogate mother is free to change her mind.  The policy of the voluntary termination statute and the consent to adoption statute is to preserve to the mother her right of choice regardless of decisions made before the birth of the child.

 Idat 212.  The court further stated that if the surrogate changes her mind, the mother's, child's, and father's statutory rights and obligations exist as if there were no contract.  The reasoning in these cases applies in analyzing the enforceability of the surrogate parenting agreement in Washington.

             Public policy, the adoption statute, and relevant case law dictate, therefore, that a surrogate parenting agreement cannot be enforced against a surrogate mother who withdraws her consent to relinquish her child before court approval of the consent.  Adoption by the father's wife could not proceed, and questions of custody, visitation, and support would be the only remaining issues, to be determined according to the best interests of the child.  RCW 26.33.010.

                                                           CLOSING COMMENT

             There are many arguments for and against surrogate parenting agreements.  For a discussion of some arguments in favor of surrogacy, see Comment,Baby-Sitting Consideration:  Surrogate Mother's Right to "Rent Her Womb" for a Fee, supra.  For a discussion of policies disfavoring such agreements, see In re Baby M, supra.  As earlier mentioned, our Legislature has not specifically addressed surrogate parenting.  The court inSurrogate Parenting Assocs. v. Commonwealth ex rel. Armstrong,supra, when asked to declare surrogacy agreements void, stated:

             [T]he threshold question is whether the legislation on the books declares the procedure impermissible.  Short of such legislation it is not for the courts to cut off solutions offered by science.

                          . . .

                          . . .The questions of whether and how new medical services of the type offered by SPA offend public policy and should be prohibited by legislation are addressed to the legislature, not the courts.

 704 S.W.2d at 213.

              [[Orig. Op. Page 9]]

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

NANCY THYGESEN DAY
Assistant Attorney General

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