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Originally published Monday, March 14, 2011 at 9:56 PM

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Bill would let parents-to-be pay surrogates

A bill in the state Legislature would make it legal in Washington state to pay someone to have your child.

Seattle Times staff reporter

House Bill 1267

A bill that has passed the state House would make it legal for intended parents to pay a surrogate to bear a child.

The measure would require that surrogates:

• Undergo medical and mental evaluations and be at least 18;

• Have given birth at least once but not been a paid surrogate more than once;

• Carry health insurance, some form of life insurance, and if possible, disability coverage.

• Surrender the child to the intended parents immediately upon birth.

• The surrogate also would have the right to make all decisions regarding herself and her pregnancy — even abortion.

Under the measure, intended parents would be:

• Required to undergo mental evaluations;

• Required to have a medical need for surrogacy (unless they are gay);

• Allowed to pay the surrogate reasonable compensation. Those familiar with such arrangements say a first-time surrogate could earn $18,000 to $22,000;

• Allowed to cover all other reasonable expenses, including medical and legal costs.

• The measure also sets a limit on the number of embryos that can be transferred to a surrogate, based on recommendations of national reproductive-health organizations that usually advise no more than two.

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Four years ago, Tiffany Sparks-Keeney was diagnosed with a medical condition that doctors said would make it unsafe for her to bear children.

The news came as a wretched gut punch for the Bellevue woman, who had always wanted "a house full of kids."

Once the pain of her loss eased, Sparks-Keeney and her husband, Aaron Keeney, began exploring alternatives — first adoption and then whether there were family or friends who might bear a child for them.

In the end, they turned to a stranger in Oregon, after learning what many Washington couples have come to understand: It's illegal here to pay someone to bear your child.

Legislation approved 57-41 in the House and scheduled for a hearing in the Senate on Tuesday would legalize compensated surrogacy in Washington state. The change would benefit an untold number of intended parents — couples as well as individuals, some gay, many straight.

While some now get around the state's ban on compensated surrogacy by asking relatives or friends to carry their child, others either travel out of state or make what sometimes are illegal arrangements in this one.

"This takes a practice that is occurring out of state and underground in our state ... and moves it to a place where there's more protection for the intended parents, the surrogate and the children being born," said the bill's sponsor, Rep. Jamie Pedersen, D-Seattle.

Seattle attorney Dan Shih and his partner, Ted MacGovern, are parents of a 3-year-old girl and twin baby girls born of two surrogates in California.

"We thought we had considered all the things two men wanting to do this would need: a surrogate, an egg donor, the right doctors, the right lawyers," Shih said.

"It turns out there was a lot more. The agency insisted on a psychologist ... to make sure everyone was on the same page."

Surrogacy isn't cheap; the cost can range up to $100,000 or more — depending on location and services. And "every expense was covered by us — lost wages; all the medical cost and travel costs," Shih said.

Advocates and critics

Women and family-rights organizations, including the National Organization for Women and Planned Parenthood, support the House bill, which they say "strikes the right balance" in protecting women who have children for a fee.

Surrogates are empowered, through contracts they sign with intended parents, to make all decisions about themselves and their pregnancies, including the option to abort.

At the same time, the measure would protect intended parents, requiring language that the surrogate turn the baby over to them at birth.

Opponents, including conservative groups and the Catholic Church, raise concerns about the buying and selling of children and complain about a lack of public debate on such an important matter.

"We are treating children as commodity; we have real concerns about the selling of a child," said Sister Sharon Park, executive director of Washington State Catholic Conference, which represents the Catholic Bishops of Washington on public-policy issues.

"This is a major shift in the law," she said. "What has changed in our state that all of a sudden now we need to make this legal?"

Jeri Chambers, a former surrogate who now operates a Portland agency called The Greatest Gift Surrogacy Center, said 80 percent of her clients are from Washington state.

And John Chally and Sandra Hodgson, attorneys who run the Northwest Surrogacy Center, also in Portland, say they plan to immediately open an office in Seattle if the bill passes.

A variety of laws

Because surrogacy remains a largely unregulated area, it's unclear how many children are born this way in the United States each year.

In a few states, including California and Oregon, commercial surrogacy has been established through case law. Some states ban all forms of surrogacy, while others — including Washington — ban only compensated surrogacy. Many are silent on the practice.

There are two forms of surrogacy: one in which a woman uses her eggs and carries a child to term for its intended parents, and the other in which an embryo that may or may not be genetically linked to the intended parents is transferred to her. The law would make compensation for either possible in Washington.

In Portland, an agency last fall matched the Keeneys with a married mother of two who agreed — for a fee — to bear their first child. She hasn't conceived, but when she does, the couple want to be involved as the pregnancy progresses.

"I'm never going to have the experience of being pregnant, and that's a huge loss," said Sparks-Keeney, a pediatric occupational therapist. "It could be made better by me getting to experience my child's development by being involved in the surrogate's pregnancy, but with the distance that's going to be awfully difficult."

With more than 50 co-sponsors, House Bill 1267 seeks to update Washington's parentage laws and bring them into conformity with the state's domestic-partnership laws.

"This bill affects literally every child born in this state — and protects the legal status of that child," Pedersen said during a House hearing.

He and his partner have four sons — including triplets — born through surrogacy arranged in California.

"Whatever your personal views," Pedersen said, "children are being born in this state and their legal status is unsettled. Our law has not caught up with the many ways that kids are being born."

Parentage Act updates

Changes to the so-called Uniform Parentage Act would replace references to mother and father with gender-neutral ones, such as parent, to accommodate domestic partners.

The measure would establish that a person living in a home and openly holding himself or herself out as the parent of a child for the first two years of that child's life is that child's presumed parent.

But perhaps the bill's most controversial provision would legalize commercial surrogacy, requiring a pre-pregnancy contract between the surrogate and intended parents and setting forth a host of safeguards — such as requirements for insurance — intended to protect surrogates from exploitation.

Some still worry that surrogates would remain vulnerable.

During debate on the House floor, Rep. Mark Miloscia, D-Federal Way, and others introduced one amendment after another: to require that only U.S. citizens could be surrogates, that a surrogate have access to interpreter services, that she must not be older than 40 or have had more than five children, that she not be on public assistance or even eligible for it, that the measure be put up for a public vote. All either failed or were withdrawn.

Sharon LaMothe, a former surrogate, now a consultant, said she believes the bill goes overboard with protections for surrogates.

Agencies and intended parents are highly selective, she said. "They want an environment where a pregnancy will thrive. They choose women in a solid relationship, someone who shows responsibility."

Before she moved to the Seattle area four years ago, she owned a surrogacy agency in Florida, where she sometimes turned away applicants on both sides.

She remembers a call from a tennis star seeking a surrogate because she wouldn't have time post-pregnancy to get back into shape before her next tour.

She discouraged a mother unable to have more children who wanted a child through surrogacy two weeks after her 8-year-old daughter was killed in an accident.

And she's turned away prospective surrogates who wanted to do it strictly for the money or who were overweight. "If they are on Medicaid, that's a huge red flag," she added.

Like the Keeneys, Shih and MacGovern, the Seattle couple, also first considered if they had a friend or relative who might bear a baby for them.

"All my friends are lawyers — they wouldn't do this," Shih joked. "That's a lot to ask of someone."

It took nine months for the couple to find a surrogate, and that arrangement ended because of miscarriages and the woman's subsequent reservations about continuing as a surrogate.

One year after meeting their second surrogate, they had their first daughter.

And a year and a half later, they began the process for another child, using a different surrogate, who delivered their twin girls.

While they've stayed in contact with the surrogates and kept them updated via Facebook, Shih said the women have no interest in parenting the children.

"They consider their relationship is with us, not the children," he said. "They ask how we are doing."

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com

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