There are no laws in Iowa that specifically provide guidelines or procedures for a surrogacy arrangement. Iowa Code 70.11, which makes it unlawful to sell or purchase another person, provides for an exception in the surrogate arrangement. This section would indicate that the state of Iowa has accepted the surrogate arrangement and arguably would indicate that a surrogate contract is not void because it is against public policy as was found in the Mary Beth Whitehead case in New Jersey.
Birth Orders have been signed by Iowa Judges
The Iowa trial courts have been conducive to issuing pre-birth orders designating the intended parents as the mother and father as long as donor oocytes are not used and the intended parents are also the genetic/biological parents. If an egg donor is used, then a pre-birth order can be obtained to establish paternity. A step-parent adoption is then done for the intended mother after birth. If donor sperm is used and the mother is the genetic mother, there are no similar laws for establishing maternity. However, an equal protection constitutional argument could be made and there would be nothing from preventing a judge exercising his/her equitable powers in signing an order establishing maternity the same as in a paternity case. In fact, when both IP's are the genetic parents and a judge questions his/her power to sign the Order, this is the argument this attorney has made to the judge. Because the Courts have issued the pre-birth orders in the past, does not guarantee they will do so in the future. It is a case-by-case decision for each individual judge. As of this writing, no pre-birth order has been appealed. Thus, it is unknown as to how the Iowa Supreme Court would rule on any issue brought before it.
Iowa Department of Health, Vital Statistics Now has Administrative Rules
The Iowa Department of Health has recently adopted administrative rules on issuing birth certificates for couples that have used a surrogate. As stated above, both parents must be the genetic parents of the child or the non-biological parent must use the step-parent adoption process. The Administrative Rules require that the child's name, date, time and place of birth be included in the Court Order. Thus, the practice has been to obtain the pre-birth order without this information so the Intended Parents have a document designating them as the parents for the hospital and then amending the Order after birth to include the information requested by the Department of Health for issuing the birth certificate.
Many Attorneys are Unaware of the Ability to Obtain the Birth Certificate without going through an Adoption
This writer has had conversations with many persons who have contacted various family law/adoption attorneys for assistance in obtaining the birth certificate without an adoption who have been told it is not possible to do and they must go through the adoption process. Thus, if the attorney you contact tells you this, then you need to look for an attorney that is aware of the ability to do so and the procedure. Giving couples this inaccurate information will hopefully be on the decline with the adoption of the Administrative Rules.
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