The Changing Landscape of Surrogacy in Idaho

By: Friday Faraday

Art by Leigh Archibald

What would The Gestational Agreements Act in Idaho do?

At the beginning of this month, a bill was signed to give more structure and oversight to gestational surrogacy in the state of Idaho. House bill 264 or the Gestational Agreements Act was co sponsored by Brooke Green (Democrat) and Dori Healey (Republican) to compile the best practices that can help steer surrogacy in Idaho and create judicial and legislative oversight over the industry as a whole.

But what does that truly mean for gestational surrogates and the intended parent(s)? The purpose of this bill was to give more clarity to the surrogacy industry in Idaho, especially when it comes to the issue of parentage. Prior to the creation of this bill it was pretty much up in the air if a surrogacy contract was enforceable or not, which meant that both the intended parent(s) and the gestational surrogate could come across potential legal complications down the road.

One might think that having pre-birth contracts would help, but in Idaho these are not acceptable no matter if the child has a genetic relationship with the intended parents or not. Prior Idaho laws made it so that the birthing parent was the legal parent, no matter if that person was never recognized as a parent in the original arrangement. That birthing parent has to give up their parental rights to start an adoption process for the intended parent(s).

All and all, this can make surrogacy arrangements far more complicated than need be. The very thought of having to navigate the legal system to prove that you are the parent(s) of your child when you have gone through the multilayered journey of infertility and surrogacy would not only be extremely stressful but also heartbreaking. Additionally, that parentage determination no doubt puts the surrogate in a distressing place.

To that degree, we can all recognize that a change needs to be made to protect everyone in this process. There needs to be a sense of safety when it comes to surrogacy laws and the enforcement of surrogacy agreements. States like New York (which enacted the Child Parent Security Act) are an example of the progress needed to protect gestational surrogates, the intended parent(s), and the child.

The creation of the Gestational Agreements Act in Idaho seeks to be the spark that will help bring together the pieces of the state’s surrogacy industry to create a foundation that seeks to reduce potential harm to everyone involved. This act can help to ensure those surrogacy agreements are protected and upheld, and approach the issue of parentage in a less harmful and traumatic way to bring surrogacy back to what it was intended to be—a life changing and beautiful gift for all parties involved.

Can the Gestational Agreements Act be a step toward more safety and protection for those that want to explore surrogacy in Idaho? The bill passed the first hurdle as it was signed into law on April 06, 2023 and is effective starting July 01, 2023, but like most laws that seek to enact transformative change, time will be the judge to tell if that can be achieved or if more action will be needed.