Code of the District of Columbia

§ 16–406. Contents of surrogacy agreements.

(a) An enforceable surrogacy agreement shall:

(1) Be in writing and executed by the surrogate and the surrogate's spouse or domestic partner, if any, and the intended parent or parents;

(2) Be executed prior to the embryo transfer or insemination;

(3) Include an affirmation by all parties that they have independent legal counsel and have read the surrogacy agreement and this chapter and understand the requirements of both;

(4) Include an affirmation by the surrogate and the surrogate's spouse or domestic partner, if any, that the surrogate and the surrogate's spouse or domestic partner:

(A) Acknowledge and agree that the surrogate and the surrogate's spouse or domestic partner are not and shall not be the parents of the child;

(B) Agree to surrender physical custody of the child to the intended parent or parents immediately after the child's birth;

(C) Agree that at all times during the pregnancy and until delivery, regardless of whether the court has issued an order of parentage, the surrogate shall maintain control and decision-making authority over the surrogate's body;

(D) Agree to cooperate in any necessary legal proceedings to recognize the intended parent or parents as the legal parent or parents or any other proceeding related to the surrogacy agreement; and

(E) Agree to all other terms, consistent with this chapter and as negotiated and agreed upon by the surrogate, the surrogate's spouse or domestic partner, and the intended parent or parents;

(5) Include an affirmation by the intended parent or parents that the parent or parents shall:

(A) Accept physical custody of the child immediately after the child's birth, regardless of the child's gender or mental or physical condition or the number of children; and

(B) Assume sole responsibility for the support of the child immediately after the child's birth, including paying for any funeral expenses if a stillbirth, preterm birth, or any other birth issue occurs that results in the child's death;

(6) Provide that the intended parent or parents shall assume the costs of all agreed-upon reasonable medical and ancillary expenses;

(7) Allocate responsibility for the assumption of costs in the event of termination of the pregnancy, termination of the contract, or breach of the contract by any party;

(8) Provide procedures for dispute resolution; and

(9) Be notarized or signed before a minimum of 2 witnesses who shall document their names, addresses, and phone numbers.

(b) The surrogate and the surrogate's spouse or domestic partner, if any, and the intended parent or parents shall be represented by independent legal counsel in the preparation, counseling, and negotiation of the surrogacy agreement. Nothing in this subsection shall prevent the intended parent or parents from assuming the costs of the surrogate's legal fees.

(c) A surrogacy agreement may not limit the right of the surrogate to make decisions to safeguard the surrogate's health or that of the embryo or fetus.

(d) Payment of reasonable medical and ancillary expenses shall be made by one or more of the following means:

(1) Insurance:

(2) Cash;

(3) Escrow; or

(4) Other arrangements satisfactory to the parties, pursuant to the terms of the surrogacy agreement.

(e) Any dispute related to a surrogacy agreement shall be resolved by the terms set forth in the surrogacy agreement.


(Apr. 7, 2017, D.C. Law 21-255, § 2(e), 64 DCR 2037.)