Surrogacy By State: What you need to know
Posted by Pathways to Parenthood | February 24, 2022
When building your family through surrogacy, a legal agreement is required between intended parents and the surrogate. This requirement is set forth by the fertility clinics providing the treatment as they will not provide treatment without a completed legal agreement.
There are many other reasons that a legal agreement is essential and necessary for surrogacy arrangements. One being that currently, there is no federal law in the US that governs surrogacy. That means it’s up to each individual state to decide how to handle surrogacy, and almost all of them have chosen a slightly different approach.
We put together this guide to help you better understand surrogacy laws by state, but please note that you should consult a qualified attorney who specializes in Assisted Reproductive Technology (ART) Law before proceeding with any surrogacy arrangement.
There are no surrogacy laws in Alabama that prohibit the practice of surrogacy, and the courts are generally favorable towards the surrogacy process. Unmarried couples may have a harder time getting a pre-birth order.
In Alaska, there are no statutes or published case law permitting or prohibiting surrogacy, so it is considered legal. With that said, pre-birth adoption orders have only been granted to married heterosexual couples using their own egg and sperm. In other cases, post-birth adoption orders have been the standard.
In Arizona technically, gestational surrogacy is legal but under Arizona Revised Statute § 25-218, surrogacy contracts are statutorily unenforceable. Despite this, gestational surrogacy continues to be practiced in Arizona. Arkansas
Surrogacy is legal in Arkansas and is regulated by a series of state laws. Arkansas’ statute on surrogacy does not specifically cover gestational surrogacy, but it is allowed in Arkansas and practiced on a regular basis.
California is one of the friendliest states for surrogacy, with specific state statutes and case law to uphold surrogacy agreements. California courts regularly grant parentage orders regardless of sexual orientation, marital status, or biological relationship.
In Colorado as of 2021, they have surrogacy-supportive law codifying best practices. Colorado law permits single individuals and married or unmarried couples of any sexual orientation to become parents via surrogacy. Also, intended parents in Colorado do not need to be genetically related to their child in order to establish parental rights.
Connecticut state law permits gestational surrogacy. Intended Parents are legally permitted to enter into a gestational agreement with a surrogate,
Delaware surrogacy laws are among the most well defined in the United States, regulated by the Gestational Carrier Agreement Act, making it relatively easy to become a surrogate or a parent through surrogacy.
Surrogacy in Florida has clear cut laws for gestational surrogacy making it relatively easy to become an Intended Parent. However, gestational surrogacy contracts will not be enforceable unless the Intended Parents are married and all parties to the contract are 18 years of age or older.
In Georgia, gestational surrogacy is permitted because no statute or published case law prohibits it.
In Hawaii, gestational surrogacy is permitted because there are no laws which prohibit it. Hawaii courts do not grant pre-birth orders regarding parentage. Intended Parents wishing to be declared the legal parents of a child born of surrogacy, must do so after the child is born.
In Idaho, gestational surrogacy is permitted because no statute or published case law prohibits it. However, recent case law (June 2016) confirmed that a non-genetic parent will not be issued a post-birth parentage order, but instead must complete a post-birth adoption in order to be recognized as a legal parent.
In Illinois, gestational surrogacy is permitted under the Illinois Gestational Surrogacy Act. It’s considered a surrogacy-friendly state that guides the process from contract formation, to qualification of the surrogate, and through the issuance of the birth certificate.
Indiana Code 31-20-1-1 makes gestational surrogacy contracts void and unenforceable as against public policy.
Iowa statutes permit gestational surrogacy and detail the specific steps that Vital Records must take in issuing birth certificates to children born to surrogates.
In Kansas, gestational surrogacy isn’t governed by a state law, but it’s permitted because no law prevents it. Courts are known to regularly issue pre-birth orders to parents who are genetically related to the child.
In Kentucky, gestational surrogacy isn’t governed by a state law, but is permitted because no statute or case law prevents it. Courts are known to regularly issue pre-birth orders will usually be granted to Intended Parents who are married when at least one shares a genetic relationship with the child, and to single Intended Parents who are genetically related to the child.
Louisiana Surrogacy Bill HB 1102 (effective August 1, 2016) legalized gestational surrogacy arrangements but only in the limited instance where the Intended Parents are Louisiana residents and are a married heterosexual couple who are both genetically related to the child (neither a sperm or egg donor was used) and includes a no compensation requirement.
The Maine Parentage Act of 2016 legalized surrogacy in Maine and created important regulations and eligibility requirements for the process.
Currently, there are no surrogacy laws in Maryland. However, in 2007, the Maryland Court of Appeals made a ruling that indirectly approved of gestational surrogacy arrangements.
In Massachusetts, gestational surrogacy is permitted based on the verdicts of several court cases.
Michigan laws prohibit paid surrogacy, in which a woman is paid for carrying the child. Michigan law also states that all surrogacy contracts are unenforceable. However, courts may still grant pre-birth orders if no payment or compensation has been made to the surrogate by the Intended Parents.
In Minnesota, gestational surrogacy is permitted because no statute or published case law prohibits it.
In Mississippi, there are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Mississippi courts are prone to granting pre-birth orders, especially when at least one Intended Parent is genetically related to the child.
In Missouri, gestational surrogacy is permitted because no statute or published case law prohibits it.
In Montana, gestational surrogacy is permitted because no statute or published case law prohibits it.
In Nebraska, R.R.S. Neb. 25-21, 200 declares surrogacy contracts to be void and unenforceable and that the biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child. Thus, statute does allow surrogacy practice in limited scenarios.
In Nevada, gestational surrogacy is permitted and is governed by Nevada Revised Statue (NRS) 126.500-126.810.
In New Hampshire, N.H.Rev.Stat.ann.168-B clearly permits gestational surrogacy; and pre-birth orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
In New Jersey, gestational surrogacy is practiced, broadly permitted by New Jersey Gestational Carrier Agreement Act. This legislation provides for enforceable gestational carrier agreements and pre-birth orders in New Jersey under certain conditions.
In New Mexico, gestational surrogacy agreements are neither permitted nor prohibited based on New Mexico Uniform Parentage Act.
As of February 2021, compensated surrogacy is legal in New York. The state passed a comprehensive law regulating and protecting the rights of surrogates and intended parents. The Child Parent Security Law is one of the best in the nation, clearly outlining legal, medical, and parentage requirements.
In North Carolina, gestational surrogacy is permitted because no statute or published case law prohibits it.
In North Dakota, Gestational Surrogacy is permitted by statute N.D. Cent. Code 14-18, which states that a child born to a gestational carrier is the child of the Intended Parents.
In Ohio, gestational surrogacy is supported by J.F.v.D.B.,879N.E.2d740, in which the Ohio Supreme Court held that gestational carrier agreements are not prohibited by public policy.
In Oklahoma, the Oklahoma Gestational Agreement Act, legalized gestational surrogacy. This Act provides for enforceable gestational carrier agreements and pre-birth orders under certain conditions.
Gestational surrogacy is permitted in Oregon because no statute or published case law prohibits it. The only statutes regarding surrogacy in Oregon, outline who is (and is not) legally responsible for a child resulting from assisted reproduction. These statutes state that donors are not responsible for any children born from embryos created using their egg or sperm.
In Pennsylvania, gestational surrogacy is permitted because no statute or published case law prohibits it.
In Rhode Island, gestational surrogacy is permitted because no statute or published case law prohibits it.
In South Carolina, gestational surrogacy is permitted because no statutes or case law prohibit it. There are published case law that suggests that surrogacy is valid.
In South Dakota, gestational surrogacy is permitted because no statutes or case law prohibit it. The courts are generally favorable, and often will issue pre-birth orders. A bill to regulate gestational surrogacy has been introduced in the 2022 legislature.
Tenn. Code Ann. 36-1-102(48) neither permits nor prohibits surrogacy, but merely defines it. A pre-birth order is only possible when at least one of the intended parents shares a genetic connection with the child.
In Texas, gestational surrogacy is permitted by Tex.Fam.Code 160.751 through 160.763. It authorizes gestational surrogacy for married intended parents who follow the procedures specified in the statute, including having their Gestational Surrogate Agreement validated by a court before birth.
In Utah, gestational surrogacy is permitted. Utah Code Ann. § 78B-15-801 (2008) permits gestational surrogacy for married intended parents only.
In Vermont, gestational surrogacy is permitted by the Vermont Parentage Act of 2018, effective July 1, 2018.
In Virginia, gestational surrogacy is permitted under Virginia’s Status of Children of Assisted Conception Statute, but only to Intended Parents who meet the requirements. Intended parents may be a married couple or unmarried individual, the gestational carrier’s compensation is limited to medical and ancillary expenses, and the gestational carrier cannot relinquish parental rights until 72 hours post-birth.
As of January 1, 2019, compensated gestational surrogacy is legal as long as it complies with the respective statutory framework.
In West Virginia, gestational surrogacy is permitted by W.VA Code §61-2-14h(e)(3), which permits fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.
Gestational Surrogacy is permitted in Wisconsin by the Wisconsin Supreme Court decision Paternity of F.T.R., Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d, 833 N.W.2d 634. The court concluded that surrogacy contracts are enforceable unless contrary to the child’s best interest.
In Wyoming, WY Stat 14-2-403(d) neither permits nor prohibits surrogacy. However, there is insufficient data to determine how a Wyoming court may rule on a parentage order or on what prospective intended parents may anticipate in their surrogacy process. As a result, surrogacy is rare in Wyoming.
To fully understand the legal process for a surrogacy journey in your state, be sure you gather information from an attorney licensed in the state. Also be sure the attorney has experience and knowledge in Assisted Reproductive Technology (ART) law.
Visit our website at www.pathwaystoparenthood.com to get more information from the Surrogacy Experts about the surrogacy process.