The Colorado Surrogacy Agreement Act was created in 2021 and became effective on May 6, 2021. The act streamlines the surrogacy process for surrogates and intended parents in Colorado. The act provides legal protections and guidelines on how to accomplish a legally binding surrogacy agreement.
In order for Colorado to have legal jurisdiction in a surrogacy matter, at least one party (Surrogate or Intended Parent(s)) must be a resident of Colorado, the birth will occur or is anticipated to occur in Colorado, or the assisted reproduction performed pursuant to surrogacy agreement will occur in Colorado.
There are three primary forms of Agreements in this area of law, a Gestational Surrogacy Agreement, a Genetic Surrogacy Agreement, and a Donor Agreement. A Gestation Surrogate is a person who agrees to become pregnant using the genetic material of the Intended Parent(s) or a third party, a Gestation Surrogate does not use genetic material from the Surrogate. A Genetic Surrogate is a person who agrees to become pregnant using their own genetic material and the genetic material of a male donor or male intended parent. A donor is a person who donated genetic material but does not intend to become pregnant with said material.
According to the Colorado Surrogacy Agreement Act, in order for there to be a valid Surrogacy Agreement the following requirements must be met:
- All parties must be at least 21 years of age;
- All parties must be represented by counsel in Colorado;
- All parties must complete medical evaluation related to surrogacy arrangement by a license medical doctor;
- Surrogate must have previously given birth to at least one child;
- Surrogate must complete a metal health consultation by a licensed mental health professional.
- If Surrogate is married, Spouse must also sign a Consent Form.
The Surrogacy Agreement must be executed before medical procedure occurs related to surrogacy agreement, other than medical eval or mental health eval or mental health eval. For a Donor Agreement, the agreement may occur prior to or after the donation of the genetic material; while this is true, it is always best to outline the process and procedures of a genetic donation prior to the donation occurring.
Surrogacy Agreements in Colorado have some required provisions that must be included in the agreement, specifically, 1) the intended parent(s) not the surrogate is the exclusive parent or parents of the child conceived upon birth; 2) the intended parent(s) not the surrogate is financially responsible for the child conceived upon birth, 3) the Surrogate is to make all health and welfare decisions regarding themselves and the pregnancy, and 4) the Surrogacy Agreement must outline termination of the Agreement.
While there are only those four required provisions of a Surrogacy Agreement, many Agreements and situations necessitate many more provisions to ensure the needs and desires or the Intended Parent(s) and Surrogate are accomplished, a few items to consider are:
- Duties of Surrogate;
- Prenatal Care;
- Duties of Intended Parents;
- Compensation, Support, and Reasonable Expenses;
- Changes of Marital Status on the Agreement;
- Genetic Testing;
- Child Privacy;
- Impact of Death on the Agreement;
- Birth Plan;
- Remedies if the Agreement is Breached.
There are a lot of steps to ensure that a surrogacy agreement is valid and binding. If the agreement does not meet the requirements of Colorado law, then a court must determine parentage based on the parties’ intent.
If you are anticipating or planning to utilize assisted reproduction either to become a parent(s) or to help someone become a parent(s) as a surrogate or donor, the process can be complicated and overwhelming, which is why the Colorado Surrogacy Agreement Act requires all individuals in the process to be represented by counsel licensed to practice law in Colorado. Therefore, we recommend you speak with one of our licensed attorneys at the Harris Law Firm to help you understand your rights and responsibilities under the Colorado Surrogacy Agreement Act.