The Oregon Surrogacy Laws: A Brief Overview
Many people are surprised to learn that Oregon is a surrogacy-friendly state. Gestational surrogacy has been recognized and permitted by the State for many years, and Oregon law currently allows a surrogate to enter into a written agreement and receive compensation for her services.
Oregon has strong statutes written solely to protect surrogate parents , and the standard of the Restatement (Third) of Surrogacy that was approved by the American Law Institute in 2002 will apply to surrogacy agreements in Oregon. The Oregon statute was enacted in 1989 and is divided into separate sections on gestational surrogacy, call agreement claims, termination of parental rights for claimed progeny that don’t match the parties’ understanding and the appointment of an attorney for the child. With these provisions, it is clear that Oregon’s law is updated, and well protected.
Surrogacy contracts in Oregon: What You Need to Know
In Oregon, surrogacy agreements are neither enforceable nor unenforceable by law, but it is possible for the parties to make them enforceable. A surrogacy contract that is valid under Oregon law must contain the following provisions: It is critical to note that the surrogate must consent to the release of the child after birth to the commissioning parent or parents. They cannot be forced to comply with the agreement once the child is born and their consent is necessary. Thus, in Oregon only the commissioning parent or parents can be held liable for a breach of the surrogacy contract. The state does not have strict laws about who can enter into a surrogacy contract. In Oregon, couples who are infertile for medical reasons, as well as same sex couples, can hire a surrogate to give birth to a child who will be parented by the commissioning parents. In these cases, the commissioning parents have to ensure that they agree on what is expected from each party in the surrogacy contract. When a contract is properly drafted, the surrogate will become the legal parent of the child upon birth just like any other birth mother. However, when a surrogate becomes pregnant through ART, there are different issues that will arise and she may be presumed to be the owner of her conceived children until proven otherwise. That being said, unlike surrogacy contracts, other contracts are enforceable, so a traditional surrogacy contract or one based on adoption may be enforceable.
Establishing Parental Rights in Oregon
Parental rights are an important consideration to make when entering surrogacy agreements. At the end of the surrogacy process, an intended parent (IP) hopes to be a legal parent with all the rights that entail under the law. Whether the surrogate is the biological or gestational mother, the IP seeks to assume all parental responsibilities from the surrogate.
Under Oregon law, the surrogate herself does not establish parental rights in a traditional surrogacy arrangement. The IP(s) will become the legal parent(s). Note that this is only the case when the IP(s) arrange for an anonymous sperm donation to facilitate the traditional surrogacy. Unlike the following section of this blog, where the egg donor has biological connections to the resulting child, the surrogate is not biologically related at all. As a result, the matrimonial law of the code is not applicable. However, if the surrogate participates in a traditional surrogacy arrangement where her ovum (egg) is used to create a child with an IP’s sperm, she will certainly establish parental rights and is on the same level as the surrogate in the following paragraph. Therefore, parental rights will need to be granted post-delivery. The process is simple and takes approximately eight weeks.
In Oregon, the intended parents will usually petition the state for parental rights following the child’s birth. After the birth event occurs, the IPs will need to file a petition with the court seeking a de facto parent-child relationship. A de facto parent-child relationship is a robust bond between the child and an IP asserting and petitioning for parental rights. The petitioner must establish to the court "by clear and convincing evidence" that any of the IPs have had a strong relationship with the child. Although the burden of persuasion is on the petitioners, the likely outcome will favor the IPs. By this, the courts recognize that the IPs have a strong parental bond with the child and can be designated the child’s legal parent.
Once the IPs establish that de facto parent-child relationship, the courts will usually go forward with the two-step procedure to terminate the surrogate’s parental rights. This involves a hearing where the judge will terminate the surrogate’s parental rights. At the next hearing, the judge will confirm the IPs’ parental rights. The second stage to this process is usually the expedited timeframe because Oregon doesn’t have strong legal issues with timely termination of any parental rights.
Compensation Issues and the Ethics of Surrogacy
Oregon state law is very clear on the issue of compensation: a surrogate is entitled to fair reimbursement for her actual medical expenses, lost wages, and childcare costs, based on a written understanding between somatic donors and the surrogate woman before the embryo implant occurs. However, state law does not address how much a surrogate may be compensated, or if she will be compensated just for her pregnancy, or in total, beginning with the pregnancy through breastfeeding.
The issue of surrogate compensation in Oregon is a complicated one that really depends on individual circumstances, as well as the rules established by a fertility clinic. These rules may include maximum limits on the amount of compensation a surrogate may receive, as well as whether charges for carrying excess embryos are permissible . The maximum levels and other rules may be somewhat flexible, if the parties and the clinic approve of the flexibility.
The ethical issues of compensation are well worth noting. Surrogacy, like infertility medicine in general, has been marred by commercial activities that have resulted in exploitation and alleged exploitation of surrogate mothers. The debate continues regarding the form and amount of financial compensation that should be allowed and, in many instances, lawmakers have outlawed compensation altogether as a means of preventing any possibility of exploitation. However, as long as surrogate compensation accords with the legal guidelines, whether the compensation is either financial or material is really a matter of agreement between the parties involved – most especially for the surrogate, who should work through her own deal with her own attorney.
The Challenges of Oregon Surrogacy
Just like with adoption, the process of surrogacy is highly regulated in Oregon. Because this is a relatively new landscape of law, a potential pitfall is that it is constantly evolving as cases go forward through the legal system. Not only do you have changes to State law and regulations, you also have changes to local county laws and health insurance eligibility laws, which can impact surrogacy particularly if the baby is a surrogate for two men, or has been conceived through in vitro fertilization. A court order is needed at a number of different stages along the way to ensure that the intended parents are recognized as the legal parents from birth.
Oregon’s law is not always followed in other states. For example, the contract will state that an out-of-state physician is not allowed to perform certain tests that are conducted during pre-natal visits, such as blood tests and ultrasound tests. These tests are required under Oregon law for a surrogacy agreement to be legal, but other states may not have similar laws or might not require any tests at all. The agreements are also often violated by the surrogate herself.
Something unfortunate that can happen occasionally, is when the surrogate changes her mind and decides to keep the child (or children) after birth. While this does require the surrogate to take legal action to terminate her parental rights, surrogate parenting agreements can typically be amended to reflect changing circumstances. So unfortunately, heartbreak is possible with any surrogacy agreement, but a few simple steps can help both parties navigate the road ahead.
Working with a Surrogate Agency in Oregon
If you’re considering using a surrogate, you may find yourself weighing the benefits of working with an agency versus an independent surrogate. An agency can provide you with support and services throughout the surrogacy process, whereas an independent surrogate may not – or may require you to secure those additional resources on your own. One of the biggest advantages to working with a surrogacy agency is that it can take some of the stress off your shoulders. Agencies can guide you through the process, pairing you with a surrogate, helping you with legal paperwork, and providing you with important information such as which doctors to work with. Use the following guidelines to help you choose an Oregon surrogacy agency that’s right for you: Ask friends, relatives and co-workers – particularly those who have gone through the surrogacy process – to recommend agencies they have experience with. Interview different agencies before making a decision. In addition to asking questions about logistics like the agency’s fee structure and any specific services offered, ask them how they handle medical emergencies, and what their plans are in the event that something goes wrong with the pregnancy. Find out if the agency is a member of the American Society for Reproductive Medicine (ASRM), which maintains strict standards for ethical practice among its members . Inquire about the agency’s success rate. Compare success rates of different Oregon surrogacy agencies to get a good idea of how often intended parents are putting a healthy baby in their new family member’s arms. Ask the agency about compensation for the surrogate. Under Oregon law, there are specific limits on how much a surrogate can be paid for the pregnancy. However, there are no limits on how much intended parents can provide for other costs related to the pregnancy, including medical costs, transportation to and from appointments, maternity clothing and childcare for surrogate’s family during pregnancy. Support services are an important part of the surrogacy process, particularly if something goes wrong during the pregnancy or if the baby is born with a disability or health issue. Make sure that your agency offers all of the support services you’ll need -whether or not the pregnancy goes as planned. Complications are rare, but they still happen, and it’s important to have a good support system in place throughout the process. The surrogacy process can come with a great deal of stress and uncertainty. A good agency can help ease your mind and provide you with resources that make the process easier.