Among the many bills killed this legislative session due to the sudden onset of COVID-19 was House Bill 1316, which would have created the Colorado Surrogacy Agreement Act. The bill’s sponsor hopes to see it return in 2021, though.
One piece of the act was that it would treat gestational and traditional surrogacy equally. The bill specified that provisions would apply “to both a gestational surrogacy agreement and a genetic surrogacy agreement,” something which varies across the U.S.
With gestational surrogacy, the surrogate isn’t the biological mother of the child. Thus, the intended parents “may” be able to fill out a pre- or post-birth order protecting their parental rights to the child from the moment of birth. “Eliminating that genetic connection will make your surrogacy process easier from a legal standpoint,” according to AmericanSurrogacy.com, a global surrogacy provider.
However, with traditional surrogacy, the child and the surrogate are biologically related, and the woman will have to terminate parental rights after birth to allow the intended parents to legally become parents, according to the site.
Traditional surrogacy is often done through in vitro fertilization at home, said Judith Hoechst, a former pediatric and neonatal ICU nurse and reproductive law and family formation attorney who helped draft the bill. If it’s a same-sex couple, it is more affordable for this to be done this way.
However, most fertility clinics will not help couples with this method, due to the lack of statute in this area, Hoeschst said. “That’s why it’s done at home for same sex couples, because physicians won’t help because we don’t have a statute and are afraid of the liability.”
In traditional surrogacy, a father can sign an acknowledgement of paternity at the birth of a child, but the woman’s name is placed there as well, though “she never intended to be a parent,” she added.