What You Need to Know About Surrogacy in New Mexico

What You Need to Know About Surrogacy in New Mexico

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New Mexico Surrogacy Laws and Information

Is surrogacy legal in New Mexico?

This is a common question for intended parents and surrogates who live in this state and are contemplating completing a surrogacy in New Mexico. Whether or not they know that there are no surrogacy laws in New Mexico, they may be unsure as to how the legal process of surrogacy works in this state.

The good news is that, even though there are no surrogacy laws in New Mexico, this family-building process is a safe and legal possibility for intended parents and surrogates in this state. As long as you work with an experienced surrogacy professional from the beginning, you can make your surrogacy dreams come true here.

If you wish to complete a New Mexico surrogacy, the first step you need to take is learning more about surrogacy in New Mexico. While we always encourage you to contact a local surrogacy attorney, we’ve also answered some of the questions you may have about New Mexico surrogacy laws below.

Q: Is surrogacy legal in New Mexico?

A: In New Mexico, surrogacy agreements are neither expressly permitted nor prohibited, as regulated by the only New Mexico surrogacy law: § 40-11A-801. Therefore, surrogacy is legal in New Mexico, and surrogacy professionals in this state regularly work with intended parents and surrogates here to help them reach their surrogacy dreams.

Q: Is compensated surrogacy legal in New Mexico?

A: Yes. There are no surrogacy laws in New Mexico that regulate how much a gestational surrogate can receive for her services. However, a traditional surrogate cannot receive base compensation, as her surrogacy is treated as an adoption under New Mexico law.

Q: Is traditional surrogacy legal in New Mexico?

A: Yes. However, while traditional surrogacy is not prohibited in New Mexico, it is subject to stricter adoption laws because of the surrogate’s relationship to the child she carries. A traditional surrogate cannot receive base compensation for her services, and she will need to adhere to adoption laws regarding termination of her parental rights after the child is born.

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

A: Because there are no surrogacy laws regulating the drafting of New Mexico surrogacy contracts, the way this legal document is created in this state is similar to the process in other states with no surrogacy laws. A surrogate and her intended parents must be represented by separate New Mexico surrogacy attorneys to ensure their rights are properly protected.

These attorneys will negotiate a surrogacy contract that addresses all potential aspects of the surrogacy journey, including:

  • Surrogate compensation and other financial information
  • The rights and responsibilities of each party
  • The potential risks and liabilities for each party, and the steps to take should they occur
  • How the intended parents’ rights will be established
  • Contact expectations before, during and after the surrogate pregnancy
  • The plan for the hospital delivery
  • And more

It’s crucial that a surrogacy contract satisfy each party’s expectations before it is finalized and signed. Only after this legal step is complete can the medical process of surrogacy in New Mexico begin.

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

A: New Mexico surrogacy laws do not specify the enforceability of surrogacy contracts in this state. Please speak with a local lawyer for more guidance on this legal issue.

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

A: Typically, New Mexico surrogacy courts grants pre-birth parentage orders to married and unmarried couples with some genetic link to the child born via surrogacy. Depending on the circumstances and the overseeing judge, married and unmarried couples with no genetic link to the child born via surrogacy may also be granted a parentage order.

However, single intended parents may have more trouble obtaining a parentage order because New Mexico law favors having two parents who may share financial responsibility for a child. Therefore, complications can arise when there is no parent to take the place of a gestational carrier on the birth certificate.

An experienced New Mexico surrogacy attorney can always guide you through the process of establishing your parental rights.

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

A: No. International intended parents should be treated the same under New Mexico surrogacy laws as domestic intended parents, but they will also need to work with an immigration lawyer to ensure safe international passage for them and their child back home.

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

A: Usually, a post-birth adoption in a New Mexico surrogacy is not an option for establishing parental rights. However, if intended parents were to complete a traditional surrogacy, they would likely need to complete an adoption after the traditional surrogate relinquished her parental rights through the proper adoption legal process.

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

A: Yes, New Mexico does allow second-parent adoptions. If an adoption is necessary (which is rare in a New Mexico surrogacy), unmarried intended parents would complete a second-parent adoption, while married intended parents would complete a stepparent adoption.

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

A: There are usually no additional legal steps needed if intended parents use a donor gamete in their surrogacy. New Mexico laws already state that donors of eggs, sperm or embryos are not the parents of any children conceived through assisted reproduction, and intended parents can usually obtain a pre-birth order regardless of the genetic connection to their child born via surrogacy in New Mexico.

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

A: No. LGBT intended parents are subject to the same surrogacy laws in New Mexico as heteronormative intended parents.

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Whether you are still considering surrogacy in New Mexico or are ready to start your personal journey, American Surrogacy can help. Our surrogacy specialists welcome intended parents and surrogates from this state, and we are happy to provide the professional case management and support services to guide you through this process, step by step.

To learn more about our agency program and how we can help you complete your New Mexico surrogacy, please call us today at 1-800-875-2229(BABY).

While American Surrogacy has made every effort to present accurate information, remember that surrogacy laws in Mexico are always subject to change. Therefore, this article should not be taken as legal advice. Please contact a local New Mexico surrogacy attorney for more information about the current state of surrogacy in New Mexico.