US Surrogacy Laws By State
Last reviewed: July 2026.
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.
The rules on compensating a surrogate vary by state and have changed in recent years. For example, as of April 2, 2025, Michigan permits compensated surrogacy: under the Assisted Reproduction and Surrogacy Parentage Act (Act 24 of 2024), a surrogacy agreement may provide for the "payment of compensation, support, and reasonable expenses" (Michigan Compiled Laws §722.1903). Because these rules change frequently and vary by state, check your state’s current statute and consult a family-law attorney before proceeding.
Conception
This refers to how the surrogate will become pregnant. Traditional surrogacy has been practiced for a very long time, but how it is treated legally varies by state and changes over time — check your state’s current law. Traditional surrogacy is when the surrogate is the biological mother of the child and conceives by natural or artificial insemination 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.
Custody
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.
Confidentiality
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.
Other
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.
Pre-Birth Orders
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.
Adoption
In some states, pre-birth orders may not be available, in which case the intended parents may need to complete an adoption after birth. If one intended parent is a biological parent, they will generally be a legal parent automatically; the other parent may need to complete a second-parent adoption. Whether pre-birth orders are available varies by state and changes over time — check your state’s current law and consult a reproductive attorney.
Married vs. Unmarried Parents
Some states place restrictions on who may enter a surrogacy arrangement — for example, limiting it to married couples. These restrictions vary by state and change frequently, so check your state’s current statute before proceeding.
Heterosexual vs. Same-Sex Couples
Whether same-sex couples may use a surrogate, and on what terms, can depend on your state’s law. Because these rules vary by state and change frequently, check your state’s current statute and consult a family-law attorney before proceeding.
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.
Surrogacy law is set at the state level, and the rules differ significantly from state to state and change frequently. Rather than relying on a fixed “friendly / gray-area / prohibited” label for each state, you should confirm the current law in your state before you begin, because a state’s status can change with new legislation or court rulings.
Two recent examples of how quickly this area moves:
- As of April 2, 2025, Michigan permits compensated surrogacy under the Assisted Reproduction and Surrogacy Parentage Act (Act 24 of 2024); a surrogacy agreement may provide for “payment of compensation, support, and reasonable expenses” (MCL §722.1903).
- Since February 15, 2021, New York has permitted compensated gestational surrogacy under the Child-Parent Security Act (New York Family Court Act, Article 5-C).
Laws in this area vary by state and change frequently — check your state’s current statute and consult a family-law attorney in your state before proceeding.
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.
This article is for general informational purposes only and is not legal advice. Laws change frequently and vary by jurisdiction. Consult a family-law attorney in your state or country before making decisions.
