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. Some of the major factors include the marital status of not only the future parent(s) but also the surrogate. Sexual orientation can also be a factor in some states that have very strict views on parenting and the LGBTQ communities.
So which states are the most surrogacy-friendly? Read on for the best and worst states for surrogacy.
The most surrogacy-friendly states have laws in place that allow intended parents to hire a gestational surrogate, and pay her a fair compensation for her time and effort. In addition, it is relatively easy for the intended parents to be granted parentage rights (legal parent(s) of the child) and for the surrogate to relinquish her parental obligations. There is also no need for post-birth legal action because the intended parents can be put onto the birth certificate at birth. For example in some states, the woman who gives birth to a baby is considered the “mother” even if she’s not genetically related to the baby. In some situations, biological parents have to “adopt” their own children.)
- California: California is among the most surrogate-friendly states in the United States. 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, and the surrogacy agreement must be executed before the surrogate begins any medications or has any 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, 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 surrogates 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.
On the other end of the spectrum, 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.
- 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
- Washington: Though surrogacy is currently prohibited in this state, it will become legal on January 1st, 2019.
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 first consider the state in which she lives. Hiring an attorney that specializes in reproductive law is essential because they are the best person to advise you on the most up to date surrogacy laws.
Working with an experienced surrogacy agency is also important; they often have relationships with local reproductive attorneys and should also be well-versed in the best states in which to work with surrogates.
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! You can also take a look at our interactive map of the U.S. for up-to-date information on surrogacy law across the country.