Surrogacy in Colorado - What You Need to Know

Historically, Colorado has been one of the most surrogacy-friendly states in the country. On May 6, 2021, Governor Polis signed the Colorado Surrogacy Agreement Act (HB21-1022) into law. Click here for the full text of the law.

Codified as C.R.S. 19-4.5-101 et seq., the Colorado Surrogacy Agreement Act incorporates into state law the best practices that local attorneys and healthcare professionals have been implementing for years. HB21-1022 established consistent standards and procedural safeguards to protect the rights and best interests of children, gestational and genetic carriers (also called surrogates), and intended parents.

Colorado courts routinely grant intended parents pre-birth orders (PBOs) before the baby is delivered, which legally establish their parental rights and enable parents to be named on birth certificates seamlessly. This supportive legal environment, bolstered by the requirements of the Colorado Surrogacy Agreement Act, welcomes many foreign intended parents every year who work with local surrogates to grow their families.

Founded in Denver, Trachman Law Center has deep ties in the Colorado reproductive technology community and has years of experience representing clients from the US and around the world in Colorado surrogacy arrangements.

Who can be a surrogate in Colorado?

The Colorado Surrogacy Agreement Act requires that Colorado surrogates are at least 21 years old and have previously given birth to at least one child. Surrogates are also required to complete a medical evaluation and a mental health consultation. Further, Colorado law requires that the surrogate have legal representation by a Colorado attorney throughout the surrogacy arrangement. Local clinics and surrogacy programs often have other requirements related to BMI, citizenship or legal residency, and lifestyle (things like smoking and alcohol intake).

Who can be an intended parent in Colorado?

Colorado law permits single individuals and married or unmarried couples of any sexual orientation to become parents via surrogacy. Additionally, intended parents in Colorado do not need to be genetically related to their child in order to establish parental rights. This is great news for LGBTQ+ parents looking to secure parental rights for children born via surrogacy in Colorado.

A match is made—what now?

Once intended parents are matched with a surrogate, and she is medically and psychological cleared, attorneys begin drafting the surrogacy contract. Colorado law requires that intended parents and surrogates retain their own independent counsel to represent the parties throughout the entirety of the arrangement, including the parentage petition process.

What does the contract include?

Typically, a surrogacy contract will address the risks and responsibilities of each party, compensation for the surrogate, and how the parents will cover the surrogate’s medical expenses (this is typically through a health insurance policy). Colorado law dictates that the agreement must permit the surrogate to make her own healthcare decisions, including choosing her own doctors. It is also crucial that the contract reflect consensus on how the parties will approach difficult situations, including whether the termination or reduction of the pregnancy would ever be appropriate (if the surrogate’s life or health was in danger, for instance).

How do parents protect their legal rights in Colorado?

The contract will also outline the process for obtaining legal recognition of the parents of the child. In Colorado, this is typically done through a pre-birth parentage petition, resulting in a pre-birth order (“PBO”). A PBO is an order issued by a judge which will declare that the intended parents are the legal parents of the child at the time of birth (and that the surrogate, her spouse or partner (if applicable), and any donors are not legal parents of the child).

Attorneys will draft the petition for a PBO with the required documentation and submit it to the appropriate court, generally during the second trimester of pregnancy. Typically, no hearing is required to obtain a Colorado PBO. The Colorado Surrogacy Agreement Act specifies that parentage petitions may be filed before or after the birth by any party to the agreement.

Do parents need to do anything else to secure their parental rights in Colorado?

Usually not. The process for establishing parental rights for children born via surrogacy in Colorado is fairly simple. In most situations, a PBO is sufficient to automatically put the intended parent(s) name(s) on the child’s birth certificate. This means that intended parents working with a Colorado surrogate do not need to undergo an adoption to further protect their parental rights (Yay! Nobody wants another arduous process to deal with after having a baby through surrogacy…). If intended parents’ home country requires a post-birth parentage order, Colorado courts accommodate these judicial decrees as well.