AN ACT Relating to becoming parents; amending RCW 26.26.050; adding a new chapter to Title 26 RCW; adding a new section to chapter 26.33 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that due to the increased incidence of female infertility, many couples are turning to surrogate mothers to help them create families.

The legislature further finds that an individual's decision regarding whether or not to bear or beget a child should fall within the protected rights of privacy, and, therefore, the state shall not prohibit the practice of surrogate parenting or enact provisions that would have the effect of prohibiting the practice.

The legislature further finds that the legal status of children born under surrogate parenting arrangements is currently uncertain. Consequently, when Washington state courts are called upon to interpret or enforce surrogate parenting agreements, the courts must decide issues, such as the status of the child, without the guidance of statutes. Therefore, the legislature finds it necessary to fill the legal void surrounding the practice of surrogate parenting.

The legislature intends to ensure that the child born in fulfillment of a surrogate parenting agreement has a permanent home and settled rights to inheritance; to define and delineate the rights and responsibilities of the intended parents, the surrogate mother and her husband, if any; to facilitate private reproductive choices by effectuating the parties' intentions; to minimize the risk to the parties; to prevent the use of surrogate parenting for other than medically necessary reasons; to reduce the risk of exploitation and coercion which may arise from the commercialization of surrogate parenting; and to ensure informed and voluntary decision-making.

The legislature declares that a court-approved surrogate parenting contract as provided is not against public policy.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Child" means a child or children conceived by and born to a surrogate mother following artificial insemination under a surrogate parenting agreement.

(2) "Independent mental health care professional" means a person who is either a psychiatrist, a person with a doctorate in clinical psychology, a licensed counselor, or a person with a masters degree in social work and who has no compensated business relationship with any person, firm, or entity required by this chapter to provide an affidavit of fees received or given pursuant to a surrogate parenting agreement.

(3) "Infertile woman" means a woman who:

(a) Has not conceived after twelve months of treatment for infertility by a physician licensed to practice in this state;

(b) Is diagnosed by a physician licensed to practice in this state as unable or unlikely to conceive a child, or to carry a child to term without significant risks to her life or health, or to her child's life or health; or

(4) "Intended parents" means an infertile woman and her husband who enter into a surrogate parenting agreement.

(5) "Party" shall mean the surrogate mother, her husband, if any, and the intended parents.

(6) "Surrogate mother" means a woman twenty-one years of age or older who enters into a surrogate parenting agreement.

(7) "Surrogate parenting agreement" means a written contract entered into by the intended parents and a surrogate mother, that conforms to the requirements of this chapter, whereby the surrogate mother agrees to be inseminated by the sperm of the husband of an infertile woman and to carry the child to term, and consents to the surrender of the child to the intended parents upon the birth of the child or as soon thereafter as is medically feasible.

NEW SECTION. Sec. 3. (1) The superior court shall have jurisdiction over petitions for judicial review of surrogate parenting agreements under this chapter.

(2) A petition for judicial approval of a surrogate parenting agreement under this chapter may be maintained when either the surrogate mother or the intended father is a resident of this state and has been a resident of this state for two years immediately preceding the commencement of the proceeding.

(3) A petition for judicial approval of a surrogate parenting contract shall be brought in the county of residence of the surrogate mother. Where the surrogate mother is not a resident of this state at the time of the commencement of the proceeding, the proceeding shall be brought in the county of residence of the intended parents.

NEW SECTION. Sec. 4. Any agreement to accomplish the purposes of a surrogate parenting agreement as defined under section 2 of this act that does not receive judicial approval under this chapter, shall be deemed null and void and shall not have any force or effect in this state.

NEW SECTION. Sec. 5. (1) A surrogate parenting agreement shall include, but not be limited to, the following provisions:

(a) That the agreement is not binding and enforceable until approved by a court of appropriate jurisdiction;

(b) That the surrogate mother agrees to be inseminated with the sperm of the husband of the infertile woman and to carry the child to term and then to relinquish the custody of the child conceived to the intended parents immediately after the child's birth or as soon thereafter as medically feasible;

(c) That the intended parents agree that upon the birth of the child, regardless of the health or physical condition of such child, they will accept and take custody of the child;

(d) That the surrogate mother shall have control of all medical decisions relating to her pregnancy consistent with the laws of this state;

(e) That all reasonable and necessary medical expenses incurred by the surrogate mother in the performance of a surrogate parenting agreement shall be the responsibility of the intended parents;

(f) That the contract shall contain provisions for term life and health insurance for the surrogate mother with the beneficiary of her choice;

(g) That just and reasonable monetary compensation for the surrogate mother, under section 7 of this act, be deposited in an escrow account or attorney trust account before the first artificial insemination of the surrogate mother, together with a schedule of payments to be made from the escrow account to the surrogate mother before the first artificial insemination;

(h) That the surrogate mother agrees to undergo medical examinations, to be paid for by the intended parents, for the following:

(i) Sexually transmitted and genetically detectable diseases;

(ii) Pregnancy; and

(iii) Fertility;

(i) That the natural father agrees to undergo medical examinations for sexually transmitted and genetically detectable diseases immediately before the donation of semen;

(j) That any provision whereby compensation is conditioned upon the health, viability, or survival or the child at term, shall be deemed void as against public policy;

(k) That the information required in (h) and (i) of this subsection be made available to all parties; and

(l) That any cause of action arising from a surrogate parenting agreement shall be limited to an action for breach of contract or an action for enforcement of the surrender of the child, or both. Remedies for breach of contract shall be limited to money damages in the amounts of compensation described in the agreement and no cause of action for actual damages shall be brought.

(2) A surrogate parenting agreement providing for artificial insemination between persons related by a degree of consanguinity under RCW 9A.64.020 shall not be approved.

(3) The surrogate mother shall have access to legal counsel of her own choosing during negotiation of the surrogate parenting agreement, the approved cost of which shall be the responsibility of the intended parents. The court shall review and approve the method of payment to such counsel. Under no circumstances, however, shall both the surrogate mother and intended parents be represented by the same attorney at any stage of these proceedings.

NEW SECTION. Sec. 6. (1) A petition for judicial approval of a surrogate parenting agreement shall be verified by the intended parents, and shall set forth the intended parents' names and address, the name and address of the proposed surrogate mother, or if such is not known to petitioners, that of her legal representative. The petition shall contain a statement that each of the intended parents understands that upon the birth of the child each parent shall have full legal and parental responsibilities toward the child, regardless of the health or physical condition of the child. The petition shall also contain a statement of any and all fees paid or to be paid by or on behalf of the intended parents in connection with the surrogate parenting agreement.

(2) The petition shall have annexed thereto the following documents:

(a) A true copy of the surrogate parenting agreement signed and executed by all parties;

(b) A physician's affidavit setting forth the grounds for the diagnosis that the intended mother is an infertile woman;

(c) A physician's affidavit stating that the surrogate mother is fertile, not pregnant, and stating further the presence or absence of sexually transmitted or genetically detectable diseases;

(d) A physician's affidavit stating that the husband of the infertile woman has been tested for sexually transmitted and genetically detectable diseases and the results of such tests; and

(e) An affidavit from any person, firm, corporation or other entity which has received, or will receive, fees or other consideration for services rendered in connection with the surrogate parenting agreement. Fees and charges for medical and other health-related services need not be set forth by affidavit.

NEW SECTION. Sec. 7. (1) Within thirty days from the date of the filing of the petition and attachments as required by section 6 of this act, the court shall schedule a hearing for the surrogate mother and the intended parents to be examined. If the identity of the surrogate mother is unknown to the intended parents, the court shall provide for a separate hearing for the surrogate mother and her attorney. In the presence of counsel, the court shall examine the parties under oath as to the surrogate parenting agreement, to determine the following:

(a) That the party being examined has freely and knowingly entered into the agreement;

(b) That the party being examined is fully informed as to all aspects of the agreement and the proceeding, and of that party's rights and obligations under the agreement and in the proceeding;

(c) That the intended parents understand that as of the date of the child's birth they will have full parental responsibilities, including the duty of support of such child;

(d) That the surrogate mother understands that upon the birth of the child, she will have no parental rights in and to such child; and

(e) The compensation paid to the surrogate mother shall be based upon the surrogate mother's:

(i) Calculation of anticipated lost wages;

(ii) Actual or anticipated expenses incurred;

(iii) Value of time expended;

(iv) The value of health risks incurred or likely to be incurred incident to or on account of the surrogate parenting agreement; and

(v) Such other factors the court deems necessary to consider in the interests of justice; and

(f) Any other information the court in its discretion deems necessary to ascertain the validity of the surrogate parenting agreement.

(2) The court shall examine all affidavits required under section 6(2) of this act and make a determination as to whether:

(a) The infertility of the intended mother has been established to the satisfaction of the court. If the court is not so satisfied, the court shall order that an additional affidavit be obtained from a second licensed physician as to that physician's diagnosis of infertility; and

(b) The compensation paid or to be paid to the surrogate mother is based upon those items described in subsection (1)(e) of this section and that such compensation is just, reasonable, and consistent with the purposes of this chapter. The court shall upon making such a determination approve such compensation and the method of compensation. When the court makes a determination that all or any part of such compensation or method of compensation cannot be approved, the reasons for the determination shall be stated in the order.

(3) (a) After examination of the parties and review of the petition and required affidavits, the court shall make a determination as to whether the surrogate parenting agreement is in compliance with this chapter.

(b) Where the court determines that the surrogate parenting agreement is in compliance with this chapter, the court shall order each party to receive counseling from a licensed independent mental health care professional, of their own choosing, as the court deems appropriate. The cost of such counseling shall be the responsibility of the intended parents.

(c) Where the court determines that the surrogate parenting agreement is not in compliance with the provisions and purposes of this chapter, the court shall make an order as it deems appropriate and shall state the reasons for such determination within the order.

(4) The petition and the records of all hearings held in a proceeding under this chapter shall be sealed by the court.

NEW SECTION. Sec. 8. Upon receipt of affidavits from the independent mental health professional that the parties have been counseled as directed by the court, the court shall cause the parties and their counsel to appear, and at such appearance the court shall make a finding that the mental health professional has counseled the parties as to the emotional and psychological consequences of surrogate parenting to the satisfaction of the court and that the parties are entering into said agreement fully informed. If the court is not satisfied that the surrogate parenting agreement protects the health and welfare of the potential child, that the parties to the surrogate parenting agreement are presently capable of giving informed consent, or that the agreement does not comply with the provisions and purposes of this chapter, the court shall make the order or disposition as the court may deem just and proper. Upon approval of the agreement, the court shall require the parties to execute consents to the agreement.

NEW SECTION. Sec. 9. Upon approval of the agreement, the agreement shall be deemed enforceable for all purposes and the child shall be deemed at birth the legitimate, natural child of the intended parents for all purposes.

NEW SECTION. Sec. 10. Upon application of the surrogate mother made no later than forty-five days from the birth of the child and upon such notice to the intended parents as the court shall direct, the court may annul or modify the surrogate parenting agreement upon a showing by clear and convincing evidence of such a compelling change of circumstances that it would not be in the best interests of the child to enforce the terms of the contract. In any such proceeding, there shall be a presumption that the contract as approved by the court is valid and is in the best interests of the child. If the contract is not enforceable, the court shall determine all issues of custody and support of the child in accordance with law and the best interests of the child.

NEW SECTION. Sec. 11. Any person, agency, association, corporation, institution, society, or organization who is not a party to a surrogate parenting agreement under this chapter, who solicits, promotes, induces, or receives surrogate mothers or intended parents for the purposes of entering into a surrogate parenting agreement, shall be a not-for-profit corporation and shall not be operated for pecuniary profit or financial gain nor shall any part of that corporation's assets, income, or profit be distributed to, or enure to the benefit of its members, directors, or officers, except in the manner provided under Title 24 RCW.

NEW SECTION. Sec. 12. Any person, agency, association, corporation, institution, society, or organization entering into a surrogate parenting arrangement and paying fees without court approval shall be guilty of a class C felony under chapter 9A.20 RCW.

Sec. 13. Section 6, chapter 42, Laws of 1975-'76 2nd ex. sess. and RCW 26.26.050 are each amended to read as follows:

(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. The physician shall certify their signatures and the date of the insemination, and file the husband's consent with the registrar of vital statistics, where it shall be kept confidential and in a sealed file.

(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 a child thereby conceived unless the donor and the woman agree in writing that said donor shall be the father. The agreement must be in writing and signed by the donor and the woman. The physician shall certify their signatures and the date of the insemination and file the agreement with the registrar of vital statistics, where it shall be kept confidential and in a sealed file.

(3) The failure of the licensed physician to perform any administrative act required by this section shall not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only in exceptional cases upon an order of the court for good cause shown.

(4) This section shall not apply to an approved surrogate parenting agreement under chapter 26.-- RCW (sections 1 through 12 of this 1988 act).

NEW SECTION. Sec. 14. A new section is added to chapter 26.33 RCW to read as follows:

The court shall not approve any adoption unless the adoption has been arranged by the state or by a public or private agency approved by the department of social and health services under chapter 74.15 RCW.

NEW SECTION. Sec. 15. Sections 1 through 12 of this act shall constitute a new chapter in Title 26 RCW.

NEW SECTION. Sec. 16. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.