Surrogacy

SURROGACY

Surrogacy in Colorado is governed under the Colorado Surrogacy Agreement Act signed by Governor Polis on May 6, 2021 (HB21-1022) : https://leg.colorado.gov/sites/default/files/2021a_1022_signed.pdf

The Colorado Surrogacy Agreement Act (the “Act”) is found under C.R.S. 19-4.5-101 et seq. The Act establishes consistent standards and procedural safeguards to promote the best interests of the children who are born as a result of a surrogacy agreement executed pursuant to the Act. Additionally, the Act protects Intended Parents, Gestational Carriers and Traditional Surrogates who have entered into agreements pursuant to the Act. 

Under this Act, Colorado law supports parents that are single, unmarried or married, and of any sexual orientation. Intended Parents may use their own sperm or eggs or a donor, or they may use an embryo that is unrelated to them.

Eligibility requirements: 
  • Intended Parents and the Gestational Carrier or Traditional Surrogate must be over the age of 21;
  • Gestational Carrier or Traditional Surrogate must have given birth to at least one child;
  • Intended Parents and the Gestational Carrier or Traditional Surrogate must complete a medical evaluation;
  • Gestational Carrier or Traditional Surrogate must complete a mental health consultation;
  • Each party must have independent legal representation by an attorney licensed in the State of Colorado.
 
The Parties must enter into a Surrogacy Agreement. The Surrogacy Agreement must meet the following rules:
  • At least one party must be a resident of Colorado, the birth must occur in Colorado, or the assisted reproduction performed pursuant to the Surrogacy Agreement must occur in Colorado;
  • The Intended Parent or Parents, the Gestational Carrier or Traditional Surrogate, and the Surrogate’s Spouse must all be a party to the agreement;
  • The Agreement must be signed by all parties in front of a notary;
  • The Agreement must be executed before a medical procedure occurs related to the Surrogacy Agreement other than the medical work-up.

SURROGACY CONTRACT NEGOTIATION

Whether or not the Intended Parents and Gestational Carrier have been matched through an agency or independently, there are certain considerations that should go into each agreement:
  • What is the intent of the parties
  • What pre-screening is going to occur
  • Are any background checks going to be performed
  • What releases, including HIPPA releases will be executed
  • Payments to be made
  • What payments are lawful
  • How much will be paid
  • When are payments to be made
  • How payments are to be disbursed
  • What tax issues might arise
  • Will life insurance be procured for Gestational Carrier
Sleeping Child - Surrogacy in Denver, CO
  • Will current health insurer provide coverage or will independent coverage need to be purchased
  • What conception and medical instructions will be included
  • What lifestyle prohibitions and pre-natal care will be included
  • What are the expectations of Intended Parents and Gestational Carrier in terms of involvement during pregnancy and at the hospital
  • What is the residency of Gestational Carrier and will there be travel restrictions
  • What is the expectation for confidentiality and what are the expectations for future contact
  • What are the termination of parental rights and birth certificate issues
  • What is the choice of law provision
  • Whether and how to address constitutional rights and waivers in the agreements
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