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Lack of Surrogacy & Adoption Regulations in Hawai‘i Opens Door to ‘Baby Selling’

June 20, 2019, 8:00 AM HST
* Updated June 20, 2:15 PM
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Considering expanding your family? You may want to be aware of some areas where the law does not protect you. Both surrogacy and adoption laws in the state of Hawai’i lack specificity in comparison to other states.

University of Hawai‘i at Mānoa William S. Richardson School of Law Family Law Professor Calvin Pang explained, “Although our courts have started to recognize contemporary family forms, our statutes haven’t changed significantly to accommodate new technologies or recognize and support all the ways people form and live within loving and sustainable families. It could be that we’re satisfied managing within our existing legal framework. The question is, should we be?”

Surrogacy

Currently, the state of affairs surrounding surrogacy laws in the United States is in disarray—there is yet to be a national policy set regarding the use of assisted reproductive technology.

Some states consider it a criminal offense to pay for a surrogate. Other states only allow for surrogates for married couples or as long as one of the intended parents is genetically related to the child.

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States that have adopted the 2002 Uniform Parentage Act (promulgated by the National Conference of Commissioners of Uniform State Laws) give the freedom of discretion to the judges, require a home study, require an order prior to pregnancy then again after the child is born, and only permit post-birth orders of parentage.

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Also, many states have the requirement of independent counsel for all parties and medical health consultation for the gestational carrier prior to the formation of the contract. A small number of states support surrogacy.

However, the majority of states, including Hawai‘i, still have no statutes addressing the matter, leaving the industry completely unregulated.

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Hawai‘i laws on this topic have not been updated since before the invention of surrogacy and the typical family unit has completely evolved since then. Recently, the Hawai‘i State Legislature has proposed SB 2632 and HB 2646 to address this lack of regulation of surrogacy agreements.

Surrogacy agreements are treated like contracts and deciding parentage is treated as an adoption. The current practice in Hawai‘i is to assume the birth parent is the natural legal parent and if she is married, so is her partner.

Although there is no comprehensive information, intended parents have filed petitions for paternity by first rebutting the presumption of parenthood, validating the legality of the contract and establishing genetic relation.

Since same-sex couples can’t both establish genetic relation to a child, current practices in Hawai‘i regarding surrogacy put them at a particular disadvantage.

There is a complete lack of statistical information on what is truly occurring in Hawai‘i; adoption and parentage cases tend to be closed and confidential. In addition, when birth certificates are amended, the Hawai‘i Department of Health does not keep a record of the reasoning for doing so, so all the information in existence now is just an estimate.

Also, as of now, even if the intended parent were the genetic parent, if the surrogate changed her mind, the only remedy an intended parent may be entitled to is monetary damages for breach of contract.

Adoption

With respect to adoption, it appears there is a lot of room for financial manipulation.

Hawai‘i is one of two states that does not have a statute demanding an affidavit accounting the expenses associated with adoption to the courts. In addition, Hawai‘i has no statutes limiting how much an adoptive family can bribe a vulnerable, usually low-income mother with an unplanned pregnancy. Hawai‘i also has no legislation capping the percentage of funds from each adoption that goes to administrative costs and salaries. In fact, there are both for-profit and nonprofit adoption agencies in our state, which brings into question the agencies’ ethical standards and fiduciary motivations.

Given the recent scandals involving adoption agencies sending recruits to the Marshal Islands to coerce pregnant women to give up their babies for adoption and adoption fixers being charged with human trafficking, this lack of legislation fuels the problem.

The people of the Marshal Islands have been an ideal target for financially motivated adoption agencies and facilitators. By allowing mothers to claim they are making these decisions with their own free will, while at the same time allowing the adoption agencies and recruits to make promises to the mothers in exchange for giving up their children, increases the possibility of “baby selling.”

One study found that 87% of the mothers interviewed from the Marshall Islands who gave up their children for adoption were under the impression that their children would return home once they reached age 18.

The Hawai‘i attorney general’s office has acknowledged a formal investigation focused on the billing practices of the agencies arranging the adoptions and on funds being used to influence mothers to give up their children.

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