Since the federal government has yet to enact any laws regarding surrogacy, it has been left up to the states to legislate surrogacy contracts. Many states have passed laws allowing for some form of surrogacy agreements, but others have either not passed laws or have passed laws expressly forbidding all or some forms of surrogacy. To avoid legal troubles, you should make sure to know the laws and guidelines surrounding the surrogacy process in your state.
What Are the Important Legal Aspects of Surrogacy?
Because states have been left on their own to make laws, the exact policies tend to vary a lot. Luckily, the differences in state laws fall into several specific areas.
The Surrogacy Agreement
This is the basis of your surrogacy process that dictates everything from compensation of the surrogate to the rights of the child before and after birth. Since the laws in different states can vary a lot and there can be many small details, you should consult an attorney to help you create your surrogacy agreement. Here are some things that this agreement may outline:
Compensation of the Surrogate
In a compensated surrogacy, the intended parents pay the surrogate a pre-determined fee to carry the baby as well as other fees in case of unforeseen circumstances. The surrogacy arrangement should clearly state how and how much the surrogate will be compensated.
Almost every state allows compensated surrogacy. However, Michigan and Nebraska only allow uncompensated surrogacy, also known as compassionate or altruistic surrogacy.
This refers to how the surrogate will become pregnant. Traditional surrogacy has actually been performed for thousands of years, yet is illegal in several states today. Traditional surrogacy is when the surrogate is the biological mother of the child and conceives the baby by naturally or artificially inseminating herself with the sperm of the intended father.
Traditional surrogacy is very uncommon and has come to be replaced by gestational surrogacy. Gestational surrogacy is when the surrogate is not the biological mother of the child. Instead, the intended parents have the egg fertilized by in vitro fertilization. In vitro fertilization (IVF) is where the sperm fertilizes the egg in a lab, rather than through intercourse or artificial insemination. The embryo is then transferred to the gestational surrogate.
It is important to outline in a surrogacy agreement how conception will occur, how many attempts will be made, where the embryo transfer will occur, and whose sperm/egg will be used.
Responsibilities of the Surrogate
If you are entrusting your baby to the care of a surrogate, you should make sure that you clearly define the responsibilities of the surrogate when carrying the child.
Here you should specify nutrition standards for the surrogate, restrictions on travel, and how the surrogate should interact with medical professionals. You should make sure that the surrogate is living a healthy life while pregnant to ensure that the child is safe. You should also make sure that the surrogate is undergoing the proper pre-birth treatments and protocols.
The contract should make sure that the intended parents receive custody of the child upon birth. This should specify whether a pre-birth or post-birth order is used to transfer custody. Which one you choose will vary by state, though if pre-birth orders are allowed you should choose this.
Miscarriage or Abortion
In the unfortunate event of a miscarriage, the intended parents and surrogate should have a plan as to what is done next. This should outline if/how many further attempts are made at having the child as well as how the remains will be transferred to the intended parents.
If, for whatever reason, the surrogate decides to get an abortion, a surrogacy agreement should outline how compensation is returned or reduced and what the next steps are. This may vary depending on if the surrogates life is in danger or if they choose for another reason to get an abortion.
The intended parents and surrogate should agree on the level of confidentiality before and after birth. Some parents don’t want it to be known that they use a surrogate, and this agreement can limit the surrogate’s use of social media or other outlets.
Breach of Agreement
A surrogacy agreement should include what constitutes a breach of agreement by either party. It should also specify what happens in the case of a breach, such as how the breach is fixed (if possible) and how long the breaching party has.
A surrogacy agreement may include several other items such as notification of labor, responsibilities of the surrogate’s spouse, the child’s name and birth certificate, divorce of the intended parents, or counseling between the intended parents and surrogate.
Regardless of how you want your surrogacy agreement to look, you should consult legal counsel to create the agreement.
A pre-birth order is a legal document that establishes the intended parents as the legal parents of the child before its birth. These orders are typically signed in the second trimester of pregnancy and should be completed at least 2 months before birth.
Pre-birth orders are important because they secure your rights as parents before birth, rather than needing to wait until the child is born--which could lead to some legal disagreements with the surrogate mother.
If you want to obtain a pre-birth agreement, consult a reproductive attorney in your state.
Some states, such as Hawaii and Idaho, do not allow pre-birth orders. In these cases, the intended parents will need to adopt the child after birth. If the one intended parent is a biological parent, they will automatically be a legal parent of the child. However, the other parent may not. In that case, the other parent will need to adopt the child in what is known as second-parent adoption.
Married vs. Unmarried Parents
Surrogacy friendly states all allow for both married and unmarried parents to use a surrogate. However, some states may only allow for married couples. Louisiana and Texas currently only allow married couples.
Heterosexual vs. Same-Sex Couples
Similar to married and unmarried couples, almost all states allow for lesbian or gay couples to use a surrogate. Lousiana, for example, does not allow same-sex couples to use a surrogate.
What States Allow Surrogacy?
Almost every state in the United States allows surrogacy, yet some may have some limits placed on it based on the legal aspects discussed above.
States With Surrogacy-Friendly Laws
These states have legalized all forms of gestational surrogacy and have little to no limits on it. If your state is listed here, you should have no problems finding and using a surrogate. However, you should still consult legal counsel.
- New Jersey
- North Dakota
- Washington D.C.
Surrogacy Friendly States With Limitations
These states have laws allowing surrogacy but have placed limitations on it.
- Arkansas is highly favorable to surrogacy, but places preferences on married couples.
- Florida surrogacy law only permits married couples to use a surrogate, and forbids pre-birth orders.
- New Hampshire is highly favorable to surrogacy but states that surrogates must be 21 or older and have previously given birth.
- New York previously restricted surrogacy but has passed a law that will allow gestational surrogacy starting February 2021.
- Texas surrogacy law only allows surrogacy for married couples.
- Utah surrogacy law only allows surrogacy for married couples. It also does not allow pre-birth orders.
- Virginia surrogacy laws are very complicated and may require a post-birth order.
States With No Laws on Surrogacy
Even though most states do not have laws permitting surrogacy, they also don’t have laws forbidding it. In this case, the decision has been left to courts which have often ruled in favor of unrestricted surrogacy. However, since these states may enact laws in the future, you should be careful and make sure to consult a legal professional.
States With Favorable Court Rulings
These states have no laws governing surrogacy, but court rulings have been highly favorable and you should have no problem here.
- New Mexico
- North Carolina
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
States with Favorable Rulings With Some Limitations
- Alabama: Unmarried couples may not get a pre-birth order.
- Alaska: Alaska courts typically only issue pre-birth orders to heterosexual married couples.
- Hawaii: Hawaii courts do not issue pre-birth orders.
- Idaho: Idaho courts do not issue pre-birth orders.
- Missouri: Missouri rarely issues pre-birth orders.
- Montana: There are no documented limitations, but Montana has had very few surrogacy cases so the court rulings are not well established.
- Pennsylvania: Some Pennsylvania judges will not issue pre-birth orders
- Vermont: Vermont courts do not issue pre-birth orders.
- Wyoming: There are no documented limitations, but Wyoming has had very few surrogacy cases so the court rulings are not well established.
States That Forbid or Seriously Restrict Surrogacy
- Arizona: Arizona forbids surrogacy contracts.
- Indiana: Surrogacy contracts are “void and unenforceable”.
- Louisiana: Louisiana only allows heterosexual married couples to use a surrogate and contracts are not enforceable in court.
- Michigan: Michigan does not allow compensated surrogacy, only altruistic/compassionate surrogacy.
- Nebraska: Only uncompensated surrogacy agreements are legal.
Where Can I Find a Surrogate?
There are several resources out there to help you find a surrogate. First, you may want to ask friends and family if they are willing to carry your child for you. If you don’t have any willing family or friends, or don’t think that choice is right for you, you should use a surrogate search service.
Here is where we can help. Instead of working with just one surrogacy agency and its limited candidates, Modamily has relationships with dozens of surrogacy agencies across the world who will help you find the surrogate that works best for you. We will guide you through the entire process and be an advocate for you every step of the way.
To find a surrogate, simply sign up for our search service or a free consultation. We also offer premium guidance that includes customized searches, expert surrogacy client management, and access to rare or specialized surrogates. For more information on these click here.