In today’s climate, when forming a family through the use of a sperm donor or gestational carrier, a same-sex couple must choose their jurisdiction wisely. I have been practicing family law in the District of Columbia for 31 years, and seen DC go from one of the most difficult jurisdictions for such family formation to one of the clearest and best places to be.

For many years, DC had a total ban on surrogacy of any kind. The law on surrogacy evolved with the history and development of family formation using a carrier of a baby who is not either of the intended parents. “Traditional surrogacy” is rarely used now; traditional surrogacy occurs where a woman is implanted with sperm from the intended parent (or another donor), and the carrier (a) supplies the egg; as well as (b) carries the baby in her uterus. The result was that the carrier was biologically connected to the baby in question, since she provided the egg. In such cases, even when there was a contract that the carrier would give the baby to the intended parents once born, many courts found it against public policy to enforce a contract for a parent to relinquish her biological child. So that if the carrier changed her mind shortly after the birth and wanted to keep the child, Courts would not enforce the contract between the carrier and the intended parents.

In order to facilitate these family formation procedures, people instead entered into Gestational Carrier Agreements where the woman carrying the baby would have both the egg and the sperm from another person implanted in her uterus. That way, the carrier would not have any DNA sharing, or biological connection to the child and there would not be a “parent,” with the legal rights associated with a parent. The egg and sperm might be donated by the intended parents, or from a known or anonymous donor.

So, the technology and processes for forming a family in this way changed, but some statutes did not. The statute in DC for many years banned all “surrogacy” and did not make a distinction between carriers who had a biological connection to the child they were carrying, and those who did not. As a result, parties could not petition the DC Superior Court for enforcement of carrier or donation contracts as they were not permitted.

All of that changed in 2017 in DC with the enactment of the Collaborative Reproduction Act, at DC Code § 16-401 et seq. The DC Collaborative Reproduction Act sets forth the requirements for (a) traditional surrogacy agreements; (b) gestational carrier agreements (where the carrier has no biological connection to the child); and (c) sperm donor agreements.

The Collaborative Reproduction Act also permits, and sets forth the requirements for, the entry of an Order of Parentage. An Order of Parentage is essential, especially for LGBTQ+ parents, and especially in this political climate. A Court Order can be registered in another state and under the Full Faith and Credit Clause of the Constitution, receiving states must honor and enforce the orders of issuing states under the U.S. Constitution. Article IV, Section 1 of the U.S. Constitution states that “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”  U.S. Const. Art. IV,§ 1 (emphasis supplied). As such, a Court Order of Parentage issued by the DC Superior Court must be respected by other states, even those states that are not friendly to LGBTQ+ parents. While a birth certificate may list both intended parents’ names, a birth certificate is only evidence of parentage; it is not a Court Order of parentage that must be followed by other states.

A Court-ordered declaration of parentage of a child ensures that both intended parents have the full rights and responsibilities of a parent, including: consenting to medical (and emergency medical) care for your child, traveling with your child across state lines, enrolling your child in school, etc. And if the intended parents were to split up, each would likely want to make sure that they have the same rights to custody of their child as their co-parent.

If you are a DC Resident, or may move to the DC area, and are planning to start a family using a gestational carrier or sperm donor, I urge you to consult with a family lawyer with experience preparing collaborative reproduction agreements so that you are protected, and that your family is created as you intend. If you are a DC Resident and have a birth certificate for your child conceived through a gestational carrier or sperm donation, but not a Court Order of Parentage, you should speak to a family lawyer who has experience with obtaining a Court Order of Parentage.