What Happens If a Surrogate Changes Her Mind?

One of the deepest fears intended parents carry into a surrogacy journey is a simple, painful question: what if the surrogate changes her mind? In Washington, the answer depends heavily on which kind of surrogacy you have, and the law provides real clarity for families willing to do it right.

Washington Recognizes Two Kinds of Surrogacy

Washington's surrogacy law lives in RCW 26.26A.700 through 26.26A.785, and it draws a bright line between two arrangements. In a gestational surrogacy, the woman carrying the child is not genetically related to that child, because the pregnancy is created using gametes that are not her own. In a genetic surrogacy, the surrogate uses her own egg, which makes her genetically related to the child. RCW 26.26A.700 defines both. This distinction is not a technicality. It changes the answer to the very question intended parents worry about most, because Washington treats a surrogate's ability to change her mind very differently depending on which kind of surrogacy is involved.

Gestational Surrogacy: The Intended Parents Are the Legal Parents

In a valid gestational surrogacy, the law is designed to give intended parents certainty. Under RCW 26.26A.715, a compliant surrogacy agreement provides that the woman acting as a surrogate, and her spouse if she has one, have no claim to parentage of the child, and that the intended parents become the exclusive parents of the child immediately on birth. RCW 26.26A.755 then confirms that a gestational surrogacy agreement meeting the statute's requirements is enforceable.

What this means in practical terms is that a gestational surrogate does not have parental rights to the child she carries under a valid agreement. She cannot decide after birth to keep the child as her own, because the law never made her a legal parent in the first place. RCW 26.26A.755 goes further and provides that if a gestational surrogate breaches the agreement in a way that prevents the intended parents from exercising their full parental rights immediately at birth, specific performance is available as a remedy, meaning a court can compel the agreement to be honored on the point of parentage. So the answer to changing her mind about who the parents are, in a valid gestational arrangement, is that she cannot, because parentage was settled by law before the child was ever born.

The One Thing a Gestational Surrogate Always Controls

It is important to be precise here, because there is one area a surrogate always keeps control of, and Washington protects it firmly. RCW 26.26A.715 requires that the agreement permit the woman acting as a surrogate to make all health and welfare decisions regarding herself and her pregnancy, and it declares any contrary provision void and unenforceable. The same statute states plainly that the surrogacy law does not diminish her right to terminate her pregnancy. In other words, a surrogate never signs away control over her own body or her own medical decisions during the pregnancy. What a valid gestational agreement settles is who the legal parents of the child are, not the surrogate's autonomy over her own health.

Genetic Surrogacy: A Window to Withdraw Consent

Genetic surrogacy is treated with more caution, and for an understandable reason. Because the genetic surrogate contributes her own egg, Washington gives her a defined opportunity to change her mind, but only within a specific window.

RCW 26.26A.765 governs termination of a genetic surrogacy agreement. Under that statute, a woman acting as a genetic surrogate may withdraw her consent to the agreement at any time before forty-eight hours after the birth of the child. To do so, she must execute a written notice of termination stating her intent to end the agreement, that notice must be attested by a notarial officer or witnessed, and it must be delivered to each intended parent before that forty-eight hour post-birth deadline passes. The intended parents also have their own ability to terminate a genetic surrogacy agreement, but only before a gamete or embryo transfer, by giving proper notice to the other parties.

There are protections built around this withdrawal right. RCW 26.26A.765 provides that once a genetic surrogacy agreement is terminated this way, the parties are released from their obligations, though the intended parents remain responsible for reimbursable expenses incurred through the date of termination. And except in cases involving fraud, a genetic surrogate who withdraws consent under this section is not liable to the intended parents for penalties or liquidated damages. So the honest answer for genetic surrogacy is that yes, the surrogate can change her mind, but only up to forty-eight hours after birth, and only by following the exact notice procedure the statute requires.

Why Validation and a Proper Agreement Matter So Much

The certainty Washington offers is not automatic, it is earned through doing the process correctly. Genetic surrogacy agreements, in particular, must be validated by the superior court to be enforceable, and RCW 26.26A.760 requires that the validation proceeding be commenced before the assisted reproduction takes place. If a genetic surrogate later terminates the agreement, that same statute requires the termination to be filed with the court, which then vacates the validation order. Gestational agreements draw their enforceability from meeting the statutory requirements in the first place. The lesson for intended parents is that the protections described here flow from having a properly drafted, statute-compliant, and, where required, court-validated agreement. A handshake arrangement or a do-it-yourself contract can leave everyone exposed to exactly the uncertainty the law was designed to prevent.

Building Your Family With Confidence in Snohomish County

Surrogacy can be one of the most hopeful and one of the most nerve-wracking ways to build a family, and the difference between certainty and heartbreak often comes down to how carefully the agreement was put together at the start. If you are considering surrogacy in Snohomish County, whether as an intended parent or a surrogate, the Law Office of Chad Foster can help you understand your rights and structure the arrangement the right way from the beginning.