Janell Donley and her husband are residents of Worland, Wyoming. They had to face a difficult path to parenthood after learning that Donley was unable to carry a pregnancy. They were grateful when Donley’s sister-in-law, also a Wyoming resident, volunteered to be their surrogate mother.
However, Donley was surprised and frustrated to learn from her lawyer that even though her husband could be named directly on their child’s birth certificate without legal action, Donley herself would have to adopt her own genetic child. It seemed sexist, and more than a little unfair. Donley describes waking up in the middle of the night thinking she needed to do something to fix the situation. She contacted her local state legislator, Republican Representative Mike Greear. Greear listened to Donley’s story and totally agreed. The legal situation in Wyoming was not working for intended mothers who raised their families through surrogacy. He would help.
Greear introduced a bill to ensure that intended mothers in a surrogacy agreement be named on the birth certificate; just like the future fathers. After facing a few obstacles in the road and a few modifications, HB0073 – Birth Certificates-Gestational Agreements was adopted and promulgated on April 5, 2021.
Complaints. Greear, a friendly business owner and former lawyer himself, generously took the time to talk to me about the law. He even graciously responded to a few of my criticisms:
- One year Wyoming residency requirement. The new law requires that prospective parents “have been residents of the state of Wyoming for at least one (1) year immediately preceding the date of the gestation agreement.” This means that a hopeful couple across the border from Wyoming, say in Fort Collins, Colo., Would not be able to strike a surrogacy deal with a friend or member. family in Wyoming and build on the new law. Greear explained that there were concerns that Wyoming could become a destination for non-Wyoming residents to come in for surrogacy. Greear’s goal was to protect the families of Wyoming.
Of course, Wyoming isn’t the first to fear that foreigners will flock to the state for surrogacy if a favorable surrogacy law is passed. When New York’s Child-Parent Security Act came into effect on February 15, 2021, it contained a 6-month residency requirement for at least one of the prospective parents. But Wyoming and New York are definitely outliers in the US for including such a limitation.
- Old fashioned requirements. The new law specifically defines “intended parents” as “two (2) persons who enter into a gestational agreement with a gestational carrier”, and provides that the intended parents of the child born under the agreement gestation “are deemed to be the mother and father” of the child. An amendment was proposed, but rejected, to remove the requirement of âtwo (2) parentsâ and replace âmother and fatherâ with âparentsâ. Greear explained that, of course, politics shaped the outcome of the proposed amendment, which resulted in the ultimate language, which isn’t exactly favorable to same-sex couples or singles.
- Impenetrable compensation limitation.Whether a surrogate mother can or should be allowed to receive compensation for being the surrogate mother has long been the subject of a global debate. Some countries, such as Canada, England and Belgium, allow surrogacy, but prohibit surrogate compensation, only allowing reimbursement of expenses to varying degrees of rigor. A number of states in the United States previously prohibited compensation for surrogates (including New York and Washington), but have reversed this position, now allowing compensation for surrogates by law. The only exception is Michigan. Michigan’s advocacy to change the law is alive and well, but, for now, paid surrogacy in Michigan continues to be not only invalid as a contract issue, but in fact criminalized.
Wyoming has taken an interesting path, with the new law requiring that “compensation be limited to expenses related to prenatal care, childbirth and any other costs, including the cost of a lost opportunity that are directly related. to pregnancy â. The âother costsâ seem broad enough, but even Greear wasn’t entirely clear on what would ultimately be considered in or out of bounds. Maternity clothing allowance? Probably safe. Fee to start surrogacy medication or undergo an embryo transfer? May be. Prenatal support for the child? Who knows.
Maybe not that bad? The new law is specific to birth certificates and arrangements that come under the narrow details described in the law. While the new law does not include single parents, same-sex couples, or prospective parents residing outside Wyoming, it also does not expressly exclude them. And, in fact, provides that this “act is not intended to modify the rights and legal status of any person or unborn child not specifically covered by the provisions of this act”. So in theory that leaves all those families that are not in the language of the law just where they were without the new law – at the discretion of the judiciary, with little legal guidance.
Huge positives in Wyoming for recognizing that surrogacy is a viable path to parenthood and that intended mothers of surrogate children in Wyoming should not be in a worse position than intention fathers. Kudos to Donley and Greear for seeing a problem and taking action to fix it. Of course, there is room for (significant) improvement.
Ellen Trachman is the Managing Counsel of Trachman Legal Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I wanna put a baby inside you. You can reach her at [email protected].