Colorado Surrogacy Agreement

The Colorado Surrogacy Agreement Act provides legal protections and sets consistent standards for surrogates and intended parents. The Colorado surrogacy law, enacted in May 2021, also provides attorneys and courts with a much-needed legal framework for this burgeoning area of assisted reproduction technology.

This article provides an in-depth look at the Colorado Surrogacy Agreement Act, including the elements needed to establish a legally sound surrogacy agreement.

In This Article:

Colorado Surrogacy Agreement Act Offers Legal Certainty
Requirements for a Valid Colorado Surrogacy Agreement
Surrogacy Eligibility Requirements in Colorado
Surrogacy Agreement Process Rules
Language to Include in a Surrogacy Agreement
When a Surrogacy Agreement Can be Terminated
Establishing Parentage and Making Other Requests
What Happens if My Surrogacy Agreement is Invalid or Breached?

Colorado Surrogacy Attorneys

Whether you plan to help someone complete their family or you’re adding to yours, it’s important to protect your legal rights. Our surrogacy attorneys can help hopeful parents and surrogates alike ensure they have a strong surrogacy agreement and are following state surrogacy laws. Call 303-688-0944 to begin your free case assessment.

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Colorado Surrogacy Agreement Act Offers Legal Certainty

Since the federal government does not regulate surrogacy, oversight is left up to states. Until 2021, Colorado did not have any surrogacy laws on the books despite it being considered a surrogacy-friendly state.

The lack of surrogacy regulations in Colorado created uncertainty for everyone involved in the pregnancy. Surrogates worried they would be left on the hook for hefty medical bills, and intended parents feared they could end up like the New Jersey couple in the 1980s Baby M case.

In Baby M, the surrogate was the child’s genetic mother, and she fought to keep the baby after the birth. The convoluted case, which involved an unenforceable surrogacy contract, ended up before the New Jersey Supreme Court. The Baby M case gained national attention and brought to light the legal implications surrounding surrogacy.

More than 30 years later, Colorado law finally provides legal reassurance of parentage to individuals who turn to surrogacy to have a child. And the new law requires issues, like a surrogate’s medical expenses, to be addressed in the agreement.

Surrogacy Statistics

In the U.S., 5.4 percent of individuals and couples who use assisted reproductive technology (ART) choose surrogacy, according to the CDC’s 2019 Assisted Reproductive Technology Fertility Clinic and National Summary Report.

The use of surrogacy has grown exponentially during the past decade. Between 2010 and 2019, the number of Americans turning to surrogates increased by a whopping 247 percent, according to the CDC.

Requirements for a Valid Colorado Surrogacy Agreement

In order to have a valid surrogacy agreement in the state of Colorado, all parties must be eligible to enter into a surrogacy agreement, the agreement must address how specific issues will be handled should they arise, and it must follow certain process rules.

Let’s begin with who is eligible to enter into a surrogacy agreement in Colorado.

Surrogacy Eligibility Requirements in Colorado

Who Can be a Surrogate in Colorado?
Under Colorado law, individuals who want to be a surrogate must meet the following requirements:
  • be at least 21 years old
  • have given birth already
  • complete a mental health assessment
  • receive a medical evaluation
  • retain their own Colorado attorney for the duration of the surrogacy arrangement
    C.R.S. § 19-4.5-104 (1)(a) – (e)

In Colorado, the intended parents may pay for the surrogate’s attorney. C.R.S. § 19-4.5-105 (f)

Who Can Use a Surrogate in Colorado?

Colorado permits anyone to use a surrogate in Colorado regardless of marital status, gender, sexual orientation, or gender identity. However, like surrogates, intended parents must meet certain criteria.

To enter into an agreement with a surrogate, you must:
  • be at least 21 years old
  • receive a medical evaluation
  • retain your own Colorado attorney for the duration of the surrogacy arrangement
    C.R.S. § 19-4.5-104 (2)(a)–(c)

If a couple plans to use a surrogate, each person must meet these requirements even if they will not be genetically related to the child. For instance, let’s say you and your spouse intend to use your egg and a sperm donor for the embryo. Even though your spouse will not be genetically linked to the child, your spouse must be at least 21 years old and undergo an evaluation by a licensed medical doctor.

Colorado Allows Two Types of Surrogates

Colorado allows intended parents to use two types of surrogates: gestational surrogates and genetic surrogates.

A gestational surrogate is a woman who agrees to carry a developing embryo for another person or couple. Gestational surrogates do not use their own egg and are not genetically related to the child.

A genetic surrogate, however, sometimes referred to as a traditional surrogate, is a woman who agrees to use her own egg for the pregnancy.

Some states, like New York, do not allow genetic surrogacy.

Surrogacy Agreement Process Rules

Like many legal agreements and contracts, there are certain processes that have to be followed for the document to be valid. The same goes for a surrogacy agreement.

The process requirements for a surrogacy agreement are found in Colorado Revised Statute section 19-4.5-105. Let’s take a look at what that entails.

Determining the Colorado Relationship

If you want a Colorado surrogacy agreement it only makes sense that you are somehow associated with the state.

To have a valid surrogacy agreement, the law requires that an intended parent or the surrogate be affiliated with Colorado in no less than one of three ways:
  • at least one party to the agreement is a Colorado resident, or
  • the birth is expected to take place in Colorado, or
  • the assisted reproduction will be performed in Colorado.
    C.R.S. § 19-4.5-105 (1)(a)
Parties to the Agreement

Before the surrogate may undergo any procedures to become pregnant, the surrogacy agreement must be finalized. C.R.S. § 19-4.5-105 (1)(g) 

That means everyone involved, including the surrogate’s spouse if there is one, must be amenable to the agreement.

The document must include the signatures of:
  • each intended parent
  • the surrogate
  • the surrogate’s spouse

A notary must witness everyone’s signature. C.R.S. § 19-4.5-105 (1)(a)-(e)

Language to Include in a Surrogacy Agreement

The Colorado Surrogacy Agreement Act spells out exactly what should be addressed in the agreement so that everyone is clear of their rights and responsibilities.

Parentage

One of the most important pieces to a surrogacy agreement is that it leaves no ambiguity about who are the parents of a child born through a surrogate. The law requires that the agreement must contain language that the surrogate, their spouse, or former spouse have “no claim to parentage of a child conceived by assisted reproduction under the agreement.” C.R.S. § 19-4.5-106 (b)

Additionally, the document should state that the intended parents are the exclusive parents of the child upon birth regardless of the number of children born, gender, and mental or physical conditions. C.R.S. § 19-4.5-106 (d)

Financial Responsibility

To protect surrogates, the law requires that the agreement explains how the intended parent(s) will pay for the agreed-upon expenses of the surrogate, fertility expenses, and medical expenses for the surrogate and the child.

The agreement should also convey that the intended parents assume financial responsibility immediately when the child or children are born despite gender and mental or physical conditions. C.R.S. § 19-4.5-106 (e) and (f)

Paying the Surrogate

Compensating a surrogate is a debatable issue, and some states prohibit surrogates from being paid outside of medical expenses. Colorado law allows intended parents to compensate surrogates.

The agreement should address payment of compensation, support, and reasonable expenses. C.R.S. § 19-4.5-106 (2)(a)

Decision Making

The agreement must contain a provision that permits the surrogate to make all health and welfare decisions regarding themselves and the pregnancy.

Ending the Agreement

Whether you’re a surrogate or an intended parent, you’ll want to be sure that the document includes what happens if either party decides to end the surrogacy agreement.

You’ll want to layout under what circumstances either party has a right to end the surrogacy agreement and what, if any, expenses will be reimbursed in that event. C.R.S. § 19-4.5-106 (h) and (2)(b)

When a Surrogacy Agreement Can be Terminated

As we all know, some relationships do not work out. So how do you end something as complicated as a surrogacy arrangement?

An intended parent or surrogate can choose to back out of the agreement before a gamete or embryo is transferred by notifying in a record to the other parties. If the transfer of an embryo or gamete does not result in a pregnancy, either party can end the agreement before another fertility procedure.

You cannot be held liable for withdrawing from the agreement. The law makes an exception in the event of fraud. C.R.S. § 19-4.5-108

Establishing Parentage and Making Other Requests

Prior to Colorado’s surrogacy law, intended parents sought orders of parentage from the court. It was a way to declare their parental rights and get their names on the child’s birth certificate. These orders were often requested before the child was born and, therefore, called pre-birth orders or PBOs. However, orders of parentage can be issued after the child’s birth.

Under Colorado’s new surrogacy law, a parent-child relationship is established as soon as the child is born when there is a valid surrogacy agreement.

“On the birth of a child conceived by assisted reproduction under a surrogacy agreement, each intended parent is, by operation of law, a parent of the child.” C.R.S. § 19-4.5-109 (1)

The law also makes it clear that neither the surrogate nor the surrogate’s spouse or ex-spouse is the child’s parent.

Obtaining a Parentage Order

You can still petition a juvenile court for an order of parentage before or after your child is born. The order would declare that the intended parents – not the surrogate – are the child’s parents and that the parent’s rights and responsibilities begin immediately when the child is born.

The order can also direct the health department to list the intended parents as the child’s parents on the birth certificate. C.R.S. § 19-4.5-111

Protecting the Child’s Privacy

In addition to declaring parental rights, parties to a surrogacy agreement may also request that court records pertaining to issues related to the surrogacy agreement be closed to public inspection to protect the child’s privacy. C.R.S. § 19-4.5-111 (1)(d)

Out-of-State Parentage Orders

If you have an order of parentage that was issued by a court outside of Colorado, you must register it with a court here in order for it to be valid in this state. C.R.S. § 19-4.5-111 (5)

What Happens if My Surrogacy Agreement is Invalid or Breached?

Invalid Agreement

One misstep in your agreement could make it invalid. If there is something wrong with your surrogacy agreement that invalidates it, the court will get involved. A judge will consider each party’s intent at the time the agreement was created to help make a determination of parentage and address other issues. C.R.S. § 19-4.5-112 (2)

We don’t want this to happen to you. That’s why we strongly recommend you work with a family law attorney who has experience handling surrogacy agreements. Your surrogacy attorney will ensure all the required elements are in your agreement so you don’t have to worry about its validity down the road.

Breach of Agreement

If a surrogate or intended parent breaks the surrogacy agreement, the non-breaching party is entitled to remedies available under the law.

One remedy that is not available to intended parents when a surrogate breaches the agreement is what’s called specific performance. Specific performance is a remedy for broken contracts in which the court orders the breaching party to follow through with what was agreed to in the contract. So, for instance, a court will not order a surrogate to submit to any medical procedures, such as embryo transfer or abortion.

When Specific Performance is Allowed

If a surrogate breaches the agreement by refusing to turn the child over to the parents, a court will intervene and order the surrogate to relinquish the child. On the flip side, the court can order intended parents to fulfill their parental duties.

Work with a Family Law Attorney for Your Surrogacy Agreement

Even though Colorado has taken steps to protect intended parents, surrogates, and resulting children, entering into a surrogacy agreement is still a complex process. When the surrogacy agreement is completed correctly the first time, you avoid future court involvement and extra expense. Call 303-688-0944 to take the first step to protect yourself and your family.

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