Oklahoma Bar Journal
Legislature Clears Up Surrogacy Questions in Oklahoma
By Robert G. Spector
Many Americans are unable to conceive and bear children naturally. This has led many to resort to becoming pregnant using artificial reproduction technology
(ART). The most common form of ART is artificial insemination donor. This usually occurs when the mother is able to conceive and bear a child but the other parent, for one reason or another, is unable to have children.1 Matters become much more difficult when the intended mother is unable to conceive or carry a child to term. Thus, was born the concept of surrogacy.
Surrogacy is divided into two categories – gestational surrogacy and genetic surrogacy. Genetic surrogacy is when the father’s sperm is used to impregnate an egg from the woman who is to carry the child to term (the surrogate). This can occur either by artificial insemination or by in vitro fertilization. The resultant child is born by the surrogate and is genetically related to both the surrogate mother and the biological father. By agreement, the surrogate would be required to relinquish the child to the person who was intended to be the mother (usually the biological father’s wife). A relinquishment of parental rights on the part of the surrogate and an adoption by the intended mother would normally follow. This type of surrogacy has been controversial since the beginning. Many states, starting with New Jersey, found agreements providing for genetic surrogacy to be against public policy.2
Gestational surrogacy is generally defined as the sperm of the intended father being united with the egg of the intended mother with the resulting embryo being implanted in a surrogate who has no biological relationship with the child. It can be expanded so the sperm comes from an anonymous donor, the egg from an anonymous donor, fertilization is done in vitro and the resulting fertilized egg is implanted into the surrogate. Unlike basic artificial insemination, Oklahoma has no rules concerning surrogacy of either type. Because a surrogate is likely paid compensation for her services, the attorney general asserted that genetic surrogacy would violate the children human trafficking statute and therefore is illegal in Oklahoma.3
This year, the Legislature passed House Bill 24684 which provides a procedure by which gestational surrogacy can take place in Oklahoma.5 The process allows a court to approve a contract between intended parents who wish to have a child through gestational surrogacy and a surrogate to allow the surrogate to carry the child to term and relinquish the child to the intended parents.6 The statute is gender neutral and is applicable to same-sex couples, as well as opposite-sex couples.7
WHO ARE THE PLAYERS AND WHAT CAN THEY DO?
The statute contemplates a number of different people.8 There are donors who are the individuals who contribute the egg or the sperm. A gestational carrier is a person who agrees to become pregnant with a child. The carrier cannot have any genetic relationship to the resulting child. An intended parent is the person or persons who intend to become the lawful parents of the child being carried by the gestational carrier.
An intended parent can enter in a contractual arrangement with the gestational carrier for the carrier to become impregnated with a child conceived by artificial insemination and carried to term. If the agreement meets the requirements of the act then the court is required to approve it and the agreement is then legally enforceable.9
A gestational carrier must be 21 years old and have been a resident of Oklahoma for 90 days preceding the date of the agreement unless the intended parent has been resident for 90 days preceding the agreement.10 The carrier must undergo a physical examination relating to the pregnancy and a mental health consultation with a mental health professional. The intended parent or parents must also go through a mental health consultation.11
THE CONTRACT AND THE PROCESS
The following people, and only these people, are necessary parties to the contract: the gestational carrier and the carrier’s spouse and each intended parent of the child, however, there may be no more than two intended parents. If the intended parent is married then the marriage partner must be an intended parent. If more than one person is to be the intended parent they must be married to each other.12
The agreement itself must comply with the following requirements:13 it must be in writing and witnessed by a notary; all parties must be represented by counsel; the intended parents and the gestational carrier must be represented by separate counsel; spouses of intended parent and gestational carrier may be jointly represented by the counsel representing the intended parent or the gestational carrier; and the agreement must include a statement indicating who the lawyers are, who they represent and that the clients have been fully advised of the consequences of the agreement.
The following terms must be in the contract: the parties must agree to the jurisdiction of the Oklahoma courts; the gestational carrier must agree to become pregnant by means of assisted reproduction; the gestational carrier must agree to relinquish all parental rights to the resulting child; the intended parents shall be the sole parents of any child born pursuant to the gestational carrier arrangement, and the intended parents shall be entitled to and shall accept legal and physical custody of the child and all parental rights and obligations with respect to such child immediately upon the child’s birth, regardless of the mental or physical condition of such child or the number of such children.
The parties must agree to exchange information during the pregnancy. Any eggs or sperm shall be from either the intended parent or a donor. The agreement must also disclose the identity of the physician who will perform the assisted reproduction. The physician must also inform the parties of the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed. The potential risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure must also be disclosed along with the expenses related to the procedure. Further required disclosures include the health risks associated with fertility drugs used in the procedure, egg retrieval procedures and egg or embryo transfer procedures and reasonably foreseeable psychological effects resulting from the procedure. The agreement shall also identify who is responsible for the medical, legal and travel expenses associated with the gestational carrier arrangement.
The following terms may, but are not required to, be in the contract:14 the promise of the carrier to undergo all medical procedures recommended by the medical provider and the carrier’s agreement to refrain from activities that could harm the unborn child, including restraining from alcohol, tobacco and using nonprescription drugs;15 and the promise of the intended parents to pay a stipend to the carrier and to pay for certain expenses.
The agreement must be validated by the court prior to the transfer of gametes or embryos to the gestational carrier.16 However, prior to validation, the carrier may begin a medical regime designed to increase fertility. Procedures for the retrieval of gametes from the intended parents or donor and the storage of the embryos may also take place prior to validation.
A gestational agreement that is not validated is not enforceable. Should that occur, the existence of a parent-child relationship resulting from a unenforceable gestational agreement is determined by other law.18 Financial obligations that were contracted for must be paid if they have already been incurred.
The procedure to seek validation of the agreement begins by filing a petition in a district court with appropriate venue. The petition must contain the names and addresses of the parties; the names of any parties that have not joined the petition and the reason why they have not; whether any medical procedures have already taken place and the details of such measures; and a request that the court validate the agreement. The agreement must be attached to the petition, along with affidavits or statements supporting the allegations in the petition.20 Any party not joining in the petition must be served and has 10 days to provide the court with information to assist the court with its determination. Failure to respond does not prevent the court from validating the agreement.
The court shall validate the agreement21 if it finds that it has jurisdiction over the parties and they have all met the requirements of the statute. The court must also find the medical evidence shows the intended parent is unable to carry a pregnancy to term, or it is medically unadvisable to give birth to a child. The court must also assure that each party has received legal advice and has voluntarily entered into the agreement and the surrogate has given birth to at least one child and the intended parents have made provision for the child’s guardianship if necessary.
The order validating the agreement must require that the intended parents be listed as the parents on the birth certificate; order the medical facility where the child is to be born to recognize the intended parents as the legal parents of the child; and ensure that the intended parents have the right to the immediate custody of the child, the right to name the child and the right to make all health decisions.
The court may also validate an agreement that was not validated before the parties began the process of in vitro fertilization. If the court determines the gestational agreement does not meet the necessary requirements to be validated, it shall specify each deficiency that it found which prevents it from validating the agreement. The parties may amend the agreement to cure any other identified deficiencies and thereafter file an amended petition to validate the gestational agreement. The parties may amend as many times as necessary to cure any deficiencies identified by the court.
PARENTAGE DETERMINATIONS AND OTHER PROCEDURES22
Once the agreement has been validated, the child is to be considered as if it was the natural born child of the intended parents. The gestational carrier and her spouse have no parental rights.
Once the child has been born, the intended parents must file a notice with the court within 21 days. After the court receives the notice, it must enter an order recognizing the intended parents as the legal parents of the child and, if necessary, an order requiring the surrogate to surrender the child to the intended parents and require the birth certificate to be issued in the intended parents’ names.
It is possible that the resulting child may be related to the surrogate.23 If there is such an allegation, the court shall determine parentage by law other than this act.24 An allegation that the surrogate is the biological parent must be brought within 180 days.
AMENDMENTS AND TERMINATION25
A validated gestational agreement can be amended. However, an amended agreement must be re-validated by the court. The amendments may not change the identity of the gestational surrogate or any intended parent. Those changes can only be accomplished by terminating the agreement and entering into a new agreement.
A validated gestational agreement may be terminated but only if the specific statutory procedures are followed. The procedure requires the person seeking to terminate send notice to each party to the agreement. The notice of termination must then be filed with the court. The court, after determining that the surrogate is not pregnant by artificial insemination, must terminate the agreement. Once the court so orders the agreement is terminated.26
Once the agreement has been terminated all artificial insemination procedures must cease. The agreement may be reinstated within one year should the court find the gestational carrier became pregnant by means of an assisted reproduction procedure contemplated by the gestational agreement that was performed before the party seeking to terminate the gestational agreement served upon the gestational carrier the written notice of termination of the gestational agreement.
No party to a terminated agreement is liable for damages. However, termination does not relieve any party of the duty to pay for or to reimburse any other party for any medical, legal or travel expenses incurred pursuant to the gestational agreement prior to its termination which would otherwise be owed if the gestational agreement had not been terminated, and a party having a duty to pay or reimburse such expenses shall be liable to pay or reimburse such expenses.
A gestational agreement may not be terminated after the surrogate becomes pregnant.
A surrogate may be paid a reasonable compensation for carrying the child. The amount must be negotiated in good faith between the parties. The amount of compensation may not be tied to the quality, or any genomerelated traits, of the sperm, eggs, gametes, embryos or resulting child. However, the compensation can vary depending on the number of embryos that are implanted, the number of assisted reproduction procedures undertaken in order for the gestational carrier to become pregnant, the number of children with which the gestational carrier becomes pregnant and the duration of the pregnancy.
The surrogate may also receive reimbursement for expenses and economic losses resulting from being a surrogate.
DEATH AND INHERITANCE
In the event an intended parent predeceases the birth of a child covered by a validated gestational agreement, upon birth the resulting child shall be delivered into the custody of the surviving intended parent. If there are no surviving intended parents, custody of child shall be determined by the guardianship provisions of the intended parents’ estate planning documents. If there are no estate planning documents or the named guardian cannot exercise custody, the court shall appoint a guardian. In that case, a court may appoint the gestational carrier or gestational carrier’s spouse as the child’s guardian.28
At birth, the child shall be considered a child of the intended parents for purposes of inheritance. The child cannot inherit from the surrogate nor may the surrogate under any circumstances inherit from the child.
Errors in artificial reproduction clinics do happen.29 If it turns out the child is not biologically related to either the intended parents, the egg donor or the sperm donor, the intended parents are still to be considered as the parents of the child unless a contrary determination is made by a court in an action brought by the genetic parent within 180 days.30
BREACH OF AGREEMENT31
In the event of a breach of a gestational agreement or noncompliance with the requirements of the act, the court shall determine the respective rights and obligations of the parties to the gestational agreement based solely on the evidence of the original intent of the parties and the provisions of the act. After determining that the contract has been breached, the court is authorized to use any remedy available at law or equity for breach of the gestational agreement or noncompliance with any requirement of this act. However, specific performance is not an available remedy to require the gestational carrier or any other party to be impregnated or undergo an assisted reproduction procedure.
The breach of the gestational agreement by any intended parent does not relieve the intended parents of the obligation to support a child born pursuant to the gestational agreement. The court in any action for the alleged breach or the enforcement of a gestational agreement shall award costs, attorney fees and expert fees to the prevailing party.
Like most states, Oklahoma did not have any laws on surrogacy until the passage of HB2468. It has now joined the list of states that have chosen to legalize and regulate gestational surrogacy. It was probably a constitutional imperative given that Oklahoma allows same-sex female couples to have a child. This bill provides the answer for same-sex male couples.32
Attorneys who plan to practice in the artificial reproduction area whether representing individuals or fertility clinics should read this act with a good deal of care.
Robert G. Spector is the Glenn R. Watson chair and centennial professor of law emeritus at the OU College of Law. He is an elected member of the American Law Institute and served as the Uniform Child Custody Jurisdiction and Enforcement Act reporter. He is the author of Oklahoma Family Law: Cases and Materials, Oklahoma Family Law: The Handbook and Oklahoma Family Law: Statutes and Rules Annotated and over 150 articles on family law.
1. Oklahoma has long recognized the use of artificial insemination to conceive a child. 10 O.S. §§551-553. The statutes were enacted in the mid-1960s and are very anachronistic. They provide that the procedure may only be performed by a physician and only upon the request of a husband and wife. Actually, artificial insemination is easy to perform and is used in many cases to conceive children, regardless of the marital status of the inseminated person. Of course, there are hardly any situations where the court has become involved as the statute requires.
2. See Matter of Baby M., 109 N.J. 396, 537 A.2d 1277 (N.J. 1988). But see Paternity of F.J.R., 349 Wis. 2d 84, 833 N.W.2d 634 (Wis. 2013)(validating a traditional or genetic surrogacy contract).
3. 15 Okl. Op. Atty. Gen. 277 (Okl.A.G.) referring to genetic surrogacy. Arguably the opinion did not affect gestational surrogacy.
4. A number of other jurisdictions have also recently passed surrogacy legislation. See Del. Stat., tit. 13 §§8801 to 8809; Me. Rev. Stat. tit. 19a, §§1931 to 1938; Nev. Rev. Stat. §§126.500 to 126.810; N.H. Rev. Stat. §§168B:1 to 168B:22; 750 ILCS 47/1 to 47/75; D.C. Code §§16401 to 16412. The Uniform Law Commission again revised the Uniform Parentage Act in 2017. www.uniformlaws.org/committees/community-home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f. Although the 2002 version of the UPA contained a surrogacy provision, Oklahoma did not adopt that article. The 2017 version of the act contains extensive provisions concerning both gestational and genetic surrogacy. The genetic surrogacy provisions are more streamlined than Oklahoma’s and do not require court approval.
5. The bill has an emergency clause attached to it and is now law following the governor’s signature. The act is codified at 10 O.S. §557.1 through §557.25. Citation will be to the statutory section number.
6. The venue for the court approval lies in the country where the gestational carrier is located, or in Oklahoma or Tulsa county. §557.16. That court continues to exercise exclusive continuing jurisdiction over the proceedings for 180 days after the birth of the child. The proceedings are governed by the rules of civil procedure and substantively by Oklahoma law. §557.3; §557.15. All documents are to be kept confidential and the court is to be closed except to parties and their attorneys. §557.15.
7. Earlier versions of the statute had conflicting provisions as to whether it would be applicable to same-sex male couples. One provision seemed to require that the “mother” be unable to bear a child. That was changed in a later draft. Were it not done there would have been a good argument that the statute would be unconstitutional. See In re Gestational Agreement 449 P.3d 69 (Utah 2019)(A provision of the Utah Uniform Parentage Act requiring at least one intended parent be a woman for court approval of a gestational agreement violated the due process and equal protection rights of a married samesex male couple).
12. The provision is questionable. A heterosexual couple that is not married to each other can conceive a child. A same-sex male couple that is not married to each other cannot utilize this act and therefore cannot have a child. Since we have long ago separated marriage from children, the requirement that the intended parents be married is anachronistic. Another odd provision of the act requires that none of the parties to the gestational agreement can be in the country illegally.
15. Interestingly the statute does not mention abortion. The Uniform Parentage Act 2017 in Section 804(A)(7) states that nothing in the act restricts or enlarges the carrier’s right to an abortion. The same result will probably be reached in Oklahoma due to the act’s silence on the subject.
16. §557.7. The Uniform Parentage Act 2017 does not require court approval for gestational surrogacy. It does genetic surrogacy.
18. That would usually be the Oklahoma version of Uniform Parentage Act for opposite-sex couples. 10 O.S. §7700-101 et seq. For same-sex couples, see Schnedler v. Lee, 2019 OK 52, 445 P.3d 238.
20. The court need not hold an evidentiary hearing if it is satisfied from the documents that the requirements of validation are met. §557.10(D).
22. §§557.11; 557.12.
23. Cf Steven S. v. Deborah D., 25 Cal. Rptr.3d 482, 127 Cal. App. 4th 319 (2005).
25. §§557.13; 557.14.
26. An unvalidated gestational agreement may be terminated without involving the court.
29. See www.nytimes.com/2019/08/21/health/spermdonorsfrauddoctors.html; nationalpost.com/health/ivfmixupsleadtobabiesbornwithunintendedparentage.
32. For a discussion of this issue, see Robert G. Spector, “SameSex Marriage Came to Oklahoma: Now What Happens?,” 69 Okla. L. Rev. 1 (2016).
Originally published in the Oklahoma Bar Journal -- OBJ 91 pg. 19 (February 2020)