Idaho is a surrogacy hub. A new bill would set legal ‘best practices’ for the first time.
Gestational Agreements Act would create judicial and legislative oversight of surrogacy industry, which is currently unregulated in the Gem State
Idaho State Capitol building on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)
A bill headed for the floor of the Idaho House of Representatives would be the first Idaho law to specifically address surrogacy — a thriving Idaho industry in which women act as “gestational carriers” for parents who cannot have a baby on their own.
Idaho has been called the “unofficial surrogacy capital” of the United States. Agencies specialize in matching surrogates with would-be parents from around the world, and some Idaho attorneys and health care providers now specialize in reproductive medicine and surrogacy. Idaho’s lack of regulation is one reason that has long been cited by professionals as driving the state’s popularity in surrogacy arrangements. Some surrogates receive compensation; others do not.
House Bill 264 would create some legal infrastructure for the industry. The bill is cosponsored by Boise Reps. Brooke Green, a Democrat, and Dori Healey, a Republican. Green and Healey said the Gestational Agreements Act would codify existing best practices that already guide Idaho’s surrogacy industry.
“The lack of laws create an environment ripe for errors (and a) wild West,” said Green, presenting the bill to the House Health and Welfare Committee. “The legislation ensures the protection of the little babies, the parents and the carriers.”
She said that, while surrogacy is a contractual agreement, “there is an open question whether or not surrogacy contracts that are entered into are enforceable in Idaho,” Green said.
What would the Gestational Agreements Act in Idaho do?
The Gestational Agreements Act would create judicial and legislative oversight of the surrogacy industry, Healy said.
“It will prevent abuse of the system by both the surrogate as well as the parents,” she said. “It will prevent human trafficking of children by ensuring surrogacy agreements meet the requirements of state statute.”
Green said the impetus for the bill was one piece of the process: After a surrogate birth, the intended parents and the gestational carrier — who is genetically unrelated to the baby — must go through the court process for adoption. That’s because, under Idaho’s existing laws, the person who birthed the baby is the legal mother. She must relinquish her parental rights, even though she is never considered a parent in the surrogacy arrangement.
Yuki Maas and Kevin Maas, a physician who works with surrogacy patients in the Idaho Center for Reproductive Medicine, told their personal story.
The couple tried for about 10 years to conceive, and they eventually used an anonymous egg donation. Yuki Maas was able to carry their first child, but the birth came with life-threatening complications. They relied on a surrogate for their second child, they explained.
“After all the number of years of the hardships that we went through,” the court process to establish her as the baby’s legal mother was “a little bit of a slap in the face,” she said. “To have to prove yourself in front of a judge, the right to be the parent of your own child — who, out of medical complications, you were not able to carry by yourself.”
Another mother said she and her husband used surrogacy because she had cancer. The baby had health issues a few days after his birth and was taken by air ambulance to a Salt Lake City hospital, she said.
“We had to redo the consents, had issues getting admitted to the hospital because his name did not match any of ours,” she said. “So this delayed a lot of things and caused a lot of confusion, in the fact that his name did not match ours.”
She said the baby is now 2 years old, “and we love our surrogate,” but the legal gymnastics to clarify the baby’s parentage “caused more distress than one would think.”
A former surrogate who testified also said the court process made her uncomfortable.
Idaho House Health and Welfare Committee Chairman Rep. John Vander Woude, R-Nampa, signaled his support for the bill.
“I couldn’t agree with you more — that it’s your child, and you have to go to court to adopt your own child? It seems really odd to me, and so I’m glad that we have this piece of legislation,” he told one of the people who testified.
The committee voted unanimously Thursday to introduce a slightly altered version of the bill and send it on to the House for consideration.
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