D.C. Law 21-255. Collaborative Reproduction Amendment Act of 2016.

D.C. Law 21-255. Collaborative Reproduction Amendment Act of 2016.

AN ACT

To amend Chapter 4 of Title 16 of the District of Columbia Official Code to permit collaborative reproduction and surrogacy agreements, to establish requirements for surrogates, intended parents, and the contents of surrogacy agreements, to establish parentage of a child, to provide for court orders of parentage, and to establish the effect of a subsequent marriage or domestic partnership, dissolution of a marriage or domestic partnership, death of an intended parent, and withdrawal of consent.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Collaborative Reproduction Amendment Act of 2016".

Sec. 2. Chapter 4 of Title 16 of the District of Columbia Official Code is amended as follows:

(a) The chapter name is amended to read as follows:

"CHAPTER 4. COLLABORATIVE REPRODUCTION.

(b) The table of contents is amended to read as follows:

"Sec.".

Amend § 16-401

(c) Section 16-401 is amended to read as follows:

"Sec. 16-401. Definitions.

"For the purposes of this chapter, the term:

"(1) "Ancillary expenses" means those expenses that a surrogate incurs due to the surrogacy, including legal and counseling expenses, actual lost wages, compensation for risk, inconvenience, forbearance, or restriction from usual activities, insurance premiums, expenses associated with recovery, childcare expenses, housekeeping expenses, birthing classes, nutritional expenses, maternity clothing, and travel expenses incurred during the pregnancy and directly related to the surrogacy.

"(2) "Assisted reproduction" or "assisted reproductive technology" means the treatments or procedures that include handling both eggs and sperm and embryos by a medical professional for the purpose of establishing a pregnancy.

"(3) "Assisted reproduction center" means the medical facility that performs the medical procedures related to collaborative reproduction.

"(4) "Child" means a child who is born as the result of collaborative reproduction.

"(5) "Collaborative reproduction" means assisted reproduction that involves a surrogate or a donor and an intended parent or parents. The term "collaborative reproduction" does not include the birth of a child conceived by means of sexual intercourse or the birth of a child conceived through assisted reproduction by an individual or couple who use their own gametes and intend to gestate and parent the child themselves.

"(6) "Domestic partner" shall have the same meaning as provided in section 2(3) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(3)).

"(7) "Domestic partnership" shall have the same meaning as provided in section 2(4) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(4)).

"(8) "Donor" means a person other than an intended parent who contributes gametes or embryos for use in collaborative reproduction, including a traditional surrogate.

"(9) "Embryo" means one or more fertilized eggs before week 8 of a pregnancy.

"(10) "Embryo transfer" means the medical procedure of transferring an embryo to a uterus.

"(11) "Fertilization" means a multi-step process that results in the formation of a zygote by the union of a sperm and an egg.

"(12) "Fetus" means an embryo that has developed during the period of gestation between 8 weeks and the birth of the child.

"(13) "Gamete" means a male (sperm) or female (egg) human reproductive cell.

"(14) "Gestational surrogate" means an individual who is not the intended parent, who has not provided the egg used to form any embryo that is transferred to the gestational surrogate's uterus, and who agrees to become pregnant, gestate, and deliver, through collaborative reproduction, the intended parent's child on behalf of the intended parent.

"(15) "Insemination" means either intracervical insemination, the fertility treatment that involves the placing of sperm inside a vagina to facilitate fertilization, or intrauterine insemination, the fertility treatment that involves the placing of sperm inside a uterus to facilitate fertilization. The term "insemination" does not include the placement of sperm inside a vagina through sexual intercourse.

"(16) "Intended parent" means an individual, married or unmarried, who manifests the intent in a written agreement to be legally bound as the parent of a child.

"(17) "Medical evaluation" means an evaluation and consultation by a medical professional.

"(18) "Medical expenses" means those expenses not otherwise covered by medical insurance that a surrogate incurs due to the medical effects of surrogacy, including expenses directly related to the pregnancy and expenses related to complications or other medical issues arising from the pregnancy.

"(19) "Order of parentage" means a judgment by a court of competent jurisdiction in which the parent of a child is declared.

"(20) "Parent" means an individual who is legally recognized to have all rights provided under District law with respect to a child.

"(21) "Surrogacy agreement" means a written contract between a surrogate, the surrogate's spouse or domestic partner, if any, and the intended parent or parents, pursuant to which the intended parent or parents shall be recognized as the parent or parents of the child.

"(22) "Surrogate" means an individual who is not the intended parent and does not intend to parent the child, but who agrees to become pregnant on behalf of an intended parent through collaborative reproduction with the intention of gestating and delivering the intended parent's child. The term "surrogate" includes a gestational and traditional surrogate.

"(23) "Traditional surrogate" means an individual who is not the intended parent and does not intend to parent the child, but who agrees to donate their own egg and to become pregnant, gestate, and deliver, through collaborative reproduction, the intended parent's child on behalf of the intended parent.

"(24) "Zygote" means a single cell resulting from fertilization of an egg by sperm.".

Repeal § 16-402

(d) Section 16-402 is repealed.

(e) New sections 16-403 through 16-412 are added to read as follows:

New § 16-403

"Sec. 16-403. Collaborative reproduction authorized.

"An intended parent or parents shall be recognized as the parent or parents of a child; provided, that the surrogate and the intended parent or parents comply with the requirements of this chapter.

New § 16-404

"Sec. 16-404. Surrogacy agreements authorized.

"A surrogacy agreement shall be enforceable; provided, that all parties to the agreement and the agreement itself meet the requirements of § 16-405 and § 16-406.

New § 16-405

"Sec. 16-405. Requirements of surrogates and intended parents.

"(a) An individual seeking to serve as a surrogate shall enter into a written surrogacy agreement and, at the time that the surrogacy agreement is executed, shall:

"(1) Be at least 21 years of age;

"(2) Have given birth to at least one live child;

"(3) Have undergone a medical evaluation in which the individual was approved to serve as a surrogate;

"(4) Have completed a mental health evaluation by a mental health professional in which the individual was approved to serve as a surrogate; provided, that the mental health professional has received specialized training in, or has a practice that includes a specialty in, collaborative reproduction; and

"(5) Have completed, with the intended parent or parents, a joint consultation with a mental health professional regarding issues that could arise during the surrogacy.

"(b)(1) An individual or individuals seeking to become an intended parent or parents shall enter into a written surrogacy agreement and, at the time the surrogacy agreement is executed, shall:

"(A) Be at least 21 years of age; and

"(B) Have completed with the surrogate a joint consultation with a mental health professional regarding issues that could arise during the surrogacy.

"(2) If an individual is married or in a domestic partnership, both parties to the marriage or domestic partnership must satisfy the requirements of this subsection.

New § 16-406

"Sec. 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.

New § 16-407

"Sec. 16-407. Parentage in collaborative reproduction.

"(a)(1) In the case of a child born by a gestational surrogate, an intended parent or parents shall be the parent or parents of the child and have all rights under District law, regardless of whether the intended parent or parents has a genetic relationship to the child.

"(2) The child shall have all rights, powers, privileges, immunities, duties, and obligations existing under law between a parent and child with the intended parent or parents, including the rights of inheritance.

"(3) A gestational surrogate and the gestational surrogate's spouse or domestic partner, if any, shall not be the parent or parents of the child, and shall not have any rights, powers, privileges, immunities, duties, or obligations with respect to the child.

"(4) A gamete or embryo donor who is not an intended parent and that donor's spouse or domestic partner, if any, shall not be the parent or parents of the child, and shall not have any rights, powers, privileges, immunities, duties, or obligations with respect to the child. For the purposes of this paragraph, a traditional surrogate is not a donor.

"(b)(1) In the case of a child born by a traditional surrogate, an intended parent or parents shall be the parent or parents of the child and have all rights under District law, regardless of whether the intended parent or parents has a genetic relationship to the child.

"(2) The child shall have all rights, powers, privileges, immunities, duties, and obligations existing under law between a parent and child with the intended parent or parents, including the rights of inheritance.

"(3) A traditional surrogate and the traditional surrogate's spouse or domestic partner, if any, shall not be the parent or parents of the child, and shall not have any rights, powers, privileges, immunities, duties, or obligations with respect to the child.

"(4) A gamete donor who is not an intended parent and that donor's spouse or domestic partner, if any, shall not be the parent or parents of the child, and shall not have any rights, powers, privileges, immunities, duties, or obligations with respect to the child.

New § 16-408

"Sec. 16-408. Court order of parentage.

"(a) A petition for parentage for the intended parent or parents of a child may be filed by the intended parent or parents or the surrogate in the Superior Court of the District of Columbia at any time after confirmation of the pregnancy.

"(b) The Superior Court of the District of Columbia will have jurisdiction over a petition filed under subsection (a) of this section if the court determines that:

"(1) The intended parent or parents or the surrogate is a legal resident of the District;

"(2) The intended parent or parents or the surrogate has actually resided in the District for at least one year preceding the filing of the petition; or

"(3) The child was born in the District.

"(c) A petition for parentage shall include:

"(1) An affidavit by the medical professional who oversaw the embryo transfer or insemination attesting to the facts pertaining to the creation of the embryo and the embryo transfer or insemination, if applicable;

"(2) A copy of the executed surrogacy agreement;

"(3) An affidavit by each party attesting to each party's identity and that no other proceedings exist which could affect the current proceedings; and

"(4) An affidavit by an attorney representing each party, attesting:

"(A) That the attorney did not represent both the intended parent or parents and the surrogate and the surrogate's spouse or domestic partner, if any; and

"(B) That the terms of the surrogacy agreement comply with the requirements of this chapter.

"(d) The order of parentage issued under this section shall:

"(1) Declare the intended parent or parents to be the parent or parents of the child;

"(2)(A) Direct the Registrar of Vital Records ("Registrar") to issue the certificate of birth naming the intended parent or parents as the parent or parents; or

"(B) If the intended parent or parents are named on a new certificate of birth issued after the child's discharge from the hospital, direct the Registrar:

"(i) To substitute the new certificate of birth for the original certificate of birth, naming the intended parent or parents as the parent or parents; and

"(ii) To seal the original certificate of birth from inspection when a new certificate of birth is issued; and

"(3) Declare that the surrogate and the surrogate's spouse or domestic partner, if any, are not the legal parents of the child.

"(e)(1)(A) In the case of a child born by a gestational surrogate, the court may issue an order of parentage for the child at any time after a petition for parentage has been filed. The order of parentage shall be effective upon the birth of the child.

"(B) If the order of parentage is not issued before the birth of the child, the court shall issue the order as soon as possible after the birth, but no later than 45 days after the birth.

"(2) In the case of a child born by a traditional surrogate, the court shall issue an order of parentage for the child no less than 48 hours and no more than 45 days after the birth of the child.

"(f) An order of parentage issued under this section shall be sealed to protect the privacy of the parties and the child.

New § 16-409

"Sec. 16-409. Effect of subsequent marriage or domestic partnership or dissolution of marriage or domestic partnership.

"A subsequent marriage or domestic partnership or dissolution thereof for either the surrogate or the intended parent or parents shall have no bearing on the validity of the surrogacy agreement or the child's parentage.

New § 16-410

"Sec. 16-410. Effect of death of intended parent.

"If an intended parent dies after a successful insemination or embryo transfer, the surviving spouse or domestic partner shall assume all obligations with respect to the surrogacy agreement, and both will be considered the parents of the child.

New § 16-411

"Sec. 16-411. Effect of withdrawal of consent.

"Either the surrogate or the intended parent or parents may withdraw consent to collaborative reproduction. The withdrawal shall be:

"(1) In accordance with the terms of the surrogacy agreement;

"(2) In writing;

"(3) Delivered to:

"(A) All parties to the surrogacy agreement and, if applicable, to the assisted reproduction center by certified mail with receipt acknowledged by the parties and the assisted reproduction center or by hand delivery with a witness to each hand delivery; and

"(B) The Superior Court of the District of Columbia, if an order of parentage has been issued; and

"(4) In the case of a child born by a traditional surrogate, within 48 hours after the birth of the child.

New § 16-412

"Sec. 16-412. Rules.

"The Mayor, pursuant to subchapter I of Chapter 5 of Title 2, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), may issue rules to carry out the purposes of this chapter.".

Sec. 3. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 4. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.