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For the last 25 years, Washington, D.C has imposed a strict and unforgiving ban on all surrogacy contracts. While many other states in America have evolved to embrace the vital role that surrogacy can play in helping gay, lesbian, and infertile couples achieve their dreams of having a family, D.C has stood firm on its ban. That is, until recently. The D.C Council just unanimously approved legislation to reverse the ban and legalize surrogacy.

Washington, D.C’s Surrogacy History

D.C’s decision to ban surrogacy can be traced back to the Baby M case of 1985, which marked the first American court ruling on the legitimacy of surrogacy. William and Elizabeth Stern, a wealthy couple who wanted to have a baby but faced health problems, used a newspaper ad to find a young woman named Mary Beth Whitehead willing to be inseminated with Mr. Stern’s sperm, carry and deliver the baby, and then relinquish parental rights to the Sterns in exchange for $10,000. This type of surrogacy, called traditional surrogacy since it uses the surrogate’s own egg, is far less common today than gestational surrogacy, in which the egg and sperm of the intended parents are placed into the surrogate’s womb.

When Whitehead delivered the child, she felt too attached and ultimately ran away with the baby. The Sterns immediately sued, and after a very public and messy court battle, the New Jersey Superior Court validated the surrogacy contract used between the Sterns and Whitehead and granted custody of Baby M to the Sterns based on the best interest of the child. However, about one year later in February 1988, the Supreme Court of New Jersey invalidated all surrogacy contracts as “against public policy”. Washington, D.C.followed suite and banned all surrogacy contracts soon after, making the act not only forbidden but also criminal.

Turning a New Page

An enormous amount of progress has been made since the Baby M case, including the technology to make gestational surrogacy a safe and reliable reality. While there are still opponents of surrogacy who view it as an unnatural process, a large portion of Americans support, as Gay and Lesbian Activists Alliance President Rick Rosendall calls it, the “loving, respectful, life affirming collaborations to create new families.”

D.C’s new pending legislation would overturn the ban and provide parental rights and procedures regarding surrogacy arrangements, as long as the surrogate is at least 21 years old and already has one child. As Rosendall explained, “The bill as drafted is carefully written to protect the interests of all parties in such an agreement.” Now the bill goes to the Mayor, who will review the concepts put forth and make a decision about her support. If the Mayor signs the bill, it moves to congressional review. Though there are still many steps yet to go, local infertile, gay, and lesbian couples are celebrating the potential for more freedom in their future family planning decisions.


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