Surrogacy, also known as a gestational carrier arrangement, is a great option for many parents in search of a good assistive reproductive option. It allows genetic parenthood, but also allows for egg and/or sperm donation, making it easy for parents from virtually any circumstance to benefit from it. However, surrogacy laws in the US are not regulated at the federal level. Each state has its own laws and they vary widely.
Depending on where you live in the United States, your options for surrogacy may be more limited. This article is intended as a guide, please refer to your state's laws and regulations for more information.
We’ve written previously on how to find a surrogate and questions to ask a prospective gestational carrier.
Now that you know the basics of surrogacy, you’re ready to move ahead with making your arrangements. What do you need to know about the laws in your state? How can you find and abide by them? Where is the best place to find a surrogate?
Let’s start with a few terms that will help you in navigating the legal maze:
Gestational vs. Traditional Surrogacy
A gestational surrogacy is one in which the baby is not genetically related to the surrogate. The biological mother and father provide the egg and sperm, or provide it via a donor, and the surrogate carries the baby to term. In a traditional surrogacy arrangement, the surrogate is genetically related to the baby. Most couples conceiving via IVF opt for a gestational surrogacy arrangement.
In some states, surrogate mothers can be financially compensated for their work. Because it’s demanding, exhausting work for 9 months without breaks, states like California have laws in place for the benefit of the surrogates. Other places, like New York, ban commercial surrogacy. One factor to investigate in your search for a surrogate is your state’s laws surrounding compensation.
In evaluating the laws of your state, there are three major legal considerations to make:
- The surrogacy agreement, also called the surrogacy contract or gestational carrier contract, sets forth the rights and agreements for surrogates and intended parent/s. The contract covers details everything from compensation to insurance to financial considerations (expenses and legal fees) to liability and more. The agreement will be worked out between the surrogate and intended parent/s with the help of a lawyer.
- Pre birth order establishes parental rights during pregnancy and determines the name/s of the intended parent/s to be on the birth certificate. They are typical in surrogacy-friendly states. In less surrogacy-friendly states, pre birth orders may not be granted, or may be contingent on a couple’s marital status. One of the benefits of having the Order in place earlier in the pregnancy is that, should complications arise, or the baby come early--or any number of other unforeseen events occur--the parents can decide the course of action.
- Post birth order establishes parentage after birth. This is common practice in states that don’t grant pre birth orders. Typically they put the name of the surrogate on the birth certificate and other paperwork because the surrogate birthed the child. A post birth order often requires a court appearance for the intended parents and the surrogate to ensure everyone is on the same page with the intended parents having parental rights. This step is often just a legal formality because the legal agreement was worked out long before the birth.
Surrogacy Friendly and Unfriendly US States
Not all states have laws on the books regulating surrogacy. Those with laws and precedents that support are known as “surrogacy friendly.” Some states without laws are also considered friendly. Several states have laws that ban surrogacy, or ban surrogacy among singles and unmarried couples, or only allow it with heterosexual couples. Of course, ideally your state will have laws that support surrogacy (or at the very least don’t ban it), regardless of how (un)traditional your family is. See this map of gestational surrogacy laws in the US for more specific information on the laws in your state.
Least Surrogacy-Friendly States
New York, Michigan and Louisiana are three of the least friendly states for surrogacy arrangements. They make surrogacy contracts unenforceable and participants subject to criminal penalties. Michigan and Louisiana do not allow unmarried and same sex couples to be declared the legal parents on the pre birth order. Michigan does, however, allow them to be named on the final birth certificate.
Arizona and Indiana also have less friendly laws. Parents who use egg and sperm donors, plus a surrogate, cannot be declared legal parents in a pre birth order. In cases where at least one parent is genetically related to the child, laws vary regarding legal parentage on pre birth orders.
If you live in one of these states, get a good attorney and be sure you understand what you can, can’t and must do for legal parentage, your rights and the hearings that may be required for pre/post birth orders.
Most Surrogacy-Friendly States
Surrogacy-friendly states earned their status by allowing surrogacy, pre birth orders and both parents’ names to be on the birth certificate (some states allow this through adoption). Parents do not need to be genetically related to the baby to be named on the birth certificate. Single parents using egg/sperm donation may be named the legal parent, as can same-sex couples and unmarried couples.
Some of the country’s most friendly states are:
- Washington, DC
- New Hampshire
- New Jersey
- Rhode Island
The rest of the states fall somewhere between the extremes. Surrogacy is allowed in these states but may require jumping legal hurdles, like working out arrangements post birth instead of pre birth.
- North Carolina
- North Dakota
- New Mexico
- South Carolina
- South Dakota
- West Virginia
Since most states fall into this category, it’s likely that you will encounter surrogacy laws in somewhat friendly states. It is even more important in these states to be clear on the rights, laws and expectations of surrogate mothers and intended parents, since the laws vary widely and your state may not have any laws or legal precedence to apply in your case.
Surrogacy in California
California is one of the friendliest states in the country for individuals and couples looking to use a surrogate for parenthood. It also has some of the nation’s leading experts and is on the cutting edge of technological advancement in the field of assisted reproductive technology.
California’s laws benefit both the surrogate and the intended parents. Parents get rights early on, including singles and same sex couples. Surrogates benefit from compensation for the time, physical labor and the round-the-clock commitment required to carry and deliver a baby. Parents who use an agency for egg/sperm donations can choose from some of the best agencies, such as Bright Expectations.
When you’re ready to begin, we’re here to help walk you through the process.Share this on social media: