What You Need to Know About Surrogacy in Arizona

What You Need to Know About Surrogacy in Arizona

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Arizona Surrogacy Laws and Information

While there are many states within the U.S. that do not have surrogacy laws, Arizona is not one of them. A statute in Arizona clearly outlines whether or not surrogacy is legal — and the answer is not favorable to those who wish to complete a surrogacy in Arizona.

Surrogacy laws in Arizona explicitly state that surrogacy contracts are illegal, which means that anyone pursuing a surrogacy in this state runs the additional risk of legal (and practical) complications. While there are still lawyers who will complete “memoranda of understanding,” and gestational surrogacy does occur regularly, it’s a process that our experts here at American Surrogacy would not recommend.

As always, it’s encouraged that you speak with a local Arizona surrogacy attorney before you commit to a surrogacy in this state, in order to be aware of the potential risks and liabilities of this process. In the meantime, you can find the answers to some of your questions about Arizona surrogacy laws below.

Q: Is surrogacy legal in Arizona?

A: An Arizona statue forbids “surrogate parent contracts,” whether they are traditional or gestational. The statute provides that, in a surrogacy situation, the surrogate is the legal mother of the child and, if she is married, her husband is the father. Therefore, this statute renders surrogacy contracts unenforceable, and the surrogacy process itself a legally risky path.

However, if intended parents or a surrogate from Arizona are matched with a surrogacy partner in another state, they can often still pursue surrogacy despite the laws in the state where they live.

Q: Is compensated surrogacy legal in Arizona?

A: Because surrogacy contracts are illegal, compensated surrogacy in Arizona cannot be enforced.

Q: Is traditional surrogacy legal in Arizona?

A: Likewise, traditional surrogacy is illegal and ill-advised in Arizona because of the inability to create a surrogacy contract that would protect all parties involved from the complications of the traditional surrogacy process.

Q: What does a surrogacy agreement in Arizona cover, and how does the legal process work?

A: Surrogacy contracts are illegal in Arizona and, therefore, cannot be created or enforced in a court of law. However, a few attorneys create memoranda of understanding or statements of intent in attempt to evade the law’s prohibitions on the surrogacy process. This legal process still comes with risks; any dispute between the parties can lead to dire legal repercussions.

In contrast to a legal contract, a memorandum of understanding is not legally binding. Instead, it is a formal agreement between two or more parties expressing a shared desire and line of action. To learn more about creating a surrogacy agreement as a memorandum of understanding (and the risks that come with doing so), please contact an Arizona surrogacy attorney.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Arizona?

A: Because surrogacy contracts are illegal in Arizona, they cannot be enforced by a court of law. Because of this, most intended parents will create a surrogacy agreement in another state if they are working with a surrogate from Arizona.

Q: What are the surrogacy laws in Arizona on parentage orders?

A: While surrogacy contracts themselves cannot be enforced in Arizona courts of laws, Arizona surrogacy attorneys can still ask the courts to declare the parents of a child who’s been born via gestational surrogacy. Whether or not intended parents can receive this parentage order pre-birth or post-birth will depend upon the county in which they live. Once issued, a parentage order will be used to create an appropriate birth certificate with the intended parents’ names.

If a pre-birth order cannot be issued, an Arizona surrogacy lawyer can file a stipulation or agreement with the local court about who exactly the parties are in the surrogacy agreement. The court cannot enforce the terms of the surrogacy agreement, but it can review the statements about the child’s parentage.

Because there is no parentage law in Arizona, it’s important that all intended parents and surrogates in Arizona speak with an experienced surrogacy attorney to understand what their personal situation will require.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Arizona?

A: Because surrogacy contracts in Arizona are unenforceable, it’s advised that international intended parents match with a surrogate from another state to complete their family-building process for the safest legal path.

Q: When do intended parents need to complete an adoption after birth? 

A: Typically, if intended parents cannot receive a pre- or post-birth order in Arizona, they will need to complete an adoption order after birth. However, what kind of order is required will depend upon several factors. Only a surrogacy attorney can accurately explain what that might look like for your process.

Q: Does Arizona allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: No. Second-parent adoptions are illegal in Arizona.

Q: If intended parents cannot complete a second-parent adoption, how can unmarried non-biological intended parents protect their parental rights?

A: An unmarried couple may travel to another state to complete a second-parent adoption. After that, Arizona will amend and reissue the birth certificate with both parents’ names included.

Speak with an Arizona surrogacy attorney to determine what legal process will be needed if you are a member of an unmarried intended parent couple.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: Depending on the intended parents’ marital status, additional legal steps may be needed to establish parental rights if a gamete donation is used. While some couples can receive a pre-birth order if one parent is not related, this will usually depend upon the judge that is overseeing the surrogacy case.

It’s important to recognize that just because both intended parents’ names may be placed on the child’s birth certificate does not mean that both parents automatically have the legal protection of parental rights. A parentage or adoption order after birth may be necessary.

A surrogacy attorney may also be necessary to draft a donor contract if the donor’s parental rights have not already been terminated by a consent form with a gamete bank.

Q: Are there any additional laws impacting same-sex surrogacy in Arizona?

A: No, although it’s always recommended that same-sex couples speak with an Arizona surrogacy attorney before beginning their process to understand the risks and complications that may arise due to Arizona surrogacy laws.

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Whether you are an intended parent or prospective surrogate in Arizona, you should seriously consider every aspect of completing a surrogacy journey in your home state before committing to one. Many surrogacy professionals would advise you to consider a surrogacy in another state because of the potential risks and complications of this process.

At American Surrogacy, our specialists can always help you find a partner for your surrogacy process who lives in a more surrogacy-friendly state. We will also provide support and guidance through every step of your surrogacy journey to ensure as safe a process as possible. To learn more about our agency program today, please call us at 1-800-875-2229(BABY) or contact us online.

This article is not intended to be and should not be taken as legal advice. Surrogacy laws are always subject to change, so we encourage you to contact an Arizona surrogacy attorney to learn more about the current state of surrogacy in Arizona today.