US Surrogacy laws are changing constantly and can be very different from state to state. This can lead to quite a bit of confusion for people who are looking for a gestational carrier. There are many factors that can impact whether surrogacy is legal or a possibility in a given state:
- Marital status of the intended parent(s)
- Marital status of the surrogate
- Sexual orientation (only in some states with strict views on parenting and the LGBTQ+ community)
Because of all of these factors and the complex legal environment surrounding surrogacy and reproductive technologies, it is crucial to consult with a reproductive attorney before getting started. This is especially true if you live in a state that isn’t surrogacy friendly.
Understanding Surrogacy Laws in the USA
There are a couple of points to consider when looking at the surrogacy laws by state. First, does the state where you are considering a surrogacy arrangement allow intended parents to hire a gestational surrogate, and pay her a fair compensation for her time and effort? Some states have laws in place that specifically prohibit or criminalize all or paid surrogacy arrangements. Other states have specific provisions in their laws that dictate who is able or unable to access surrogacy care.
Another point to consider is the ease in which intended parents are able to be granted parentage rights (legal parent(s) of the child). The surrogate will also need to relinquish her parental obligations.
Surrogacy friendly states don’t require post-birth legal action because the intended parents can be put onto the birth certificate at birth. In other states, the woman who gives birth to a baby is considered the “mother” even if she’s not genetically related to the baby. In those situations, biological parents have to “adopt” their own children after birth.
US Surrogacy Laws by State
So which states are the most surrogacy-friendly?
- California: California has the most friendly surrogacy laws in the USA. In order for parentage to be established, there are specific steps that need to be performed prior to the birth of the child. However, there are a couple of key stipulations: The future parents and surrogate must each retain separate attorneys during the process, plus the surrogacy agreement must be executed before the surrogate begins any medications or has any related medical procedures.
- Connecticut: Like California, surrogacy is legal and enforceable in Connecticut. In most cases, the Intended Parents could be put directly on the birth certificate after birth without the need to undergo adoption proceedings.
- Delaware: As long as there is no genetic tie to the baby from the surrogate, Delaware law allows for clear steps in naming the Intended Parents as legal parents at birth. This protects their right to make medical decisions immediately upon birth and provides important legal protection for everyone involved in the arrangement.
- New Hampshire: In addition to establishing standards for gestational carrier agreements, New Hampshire law includes specific protections for those who may access third-party protections. People can become parents through surrogacy regardless of marital status and sexual orientation.
- Nevada: Nevada’s surrogacy laws were updated in 2013, addressing some of the many issues that were present in the old laws. The new laws allow people of any marital status, gender or sexual orientation to apply to be Intended Parents. In addition, the new law provides recipients of egg, sperm and embryo donation with legal protections, making Nevada extremely surrogacy-friendly.
- Colorado: Even though there is no official law governing surrogacy in Colorado, the courts have generally been favorable to Intended Parents and surrogates wishing to participate in a surrogacy agreement.
- Georgia: Like Colorado, there aren’t any laws on the books that specifically address surrogacy contracts. However, the courts do tend to hold up these agreements with all different types of Intended Parents.
- Oregon: Oregon laws allow a birth certificate to be easily changed after birth. The hospital will initially file the birth certificate with the surrogate’s name on it, but it can be easily changed to remove her name and add the Intended Parents. The courts are also very accepting of many different types of parents: gay couples, heterosexual couples, and single parents.
- Washington: Surrogacy only recently became legal in Washington on January 1st, 2019. The new law allows for surrogacy contracts to be legally enforceable in the courts. Additionally, intended parents can obtain pre-birth parentage orders.
- Louisiana: Louisiana law only allows surrogacy for heterosexual married couples who are using their own eggs or sperm. They do issue pre-birth orders in certain rare situations, but it is still not recommended to proceed with a surrogacy cycle here.
- New York: In New York, contracts associated with compensated surrogacy cycles are considered to be void and unenforceable. IVF centers performing these types of cycles can even face high fines.
- Michigan: Michigan law expressly prohibits paid surrogacy cycles, making surrogacy cycles unenforceable. In some situations, pre-birth orders can be granted as long as the surrogate was not compensated.
Many of the other states fall somewhere in between and must be evaluated on a case-by-case basis. Some states have restrictions in place that may make it difficult for some people to obtain parentage. Intended Parents working with surrogates who live in the following states may still be able to proceed when working with a skilled and experienced reproductive attorney:
- North Dakota
Other states have laws in place that allow surrogacy, but ease of access may vary depending on certain conditions. These states include:
- New Mexico
- West Virginia
The Bottom Line
When looking for a gestational surrogate, it is extremely important to consider her home state first because the surrogacy laws in the USA are very different depending on where she lives. Hiring an attorney that specializes in reproductive law is essential as they are the best person to advise you on the most up to date US surrogacy laws by state.
Working with an experienced surrogacy agency is also important; they often have relationships with local reproductive attorneys. Extraordinary Conceptions is proud to work with surrogates all over the country and talented reproductive attorneys who can help guide you in this process. Get in touch with us today to discuss getting started on your surrogacy journey! Take a look at our interactive map of the US surrogacy laws for up-to-date information.