No matter where you are in your surrogacy process, it’s important that you understand the surrogacy laws in the U.S. Because gestational surrogacy laws can vary so widely from state to state, you’ll need to consult with your surrogacy specialist and your surrogacy lawyer to make sure that all of the legal issues with surrogacy are covered and you’re protected from any legal problems that may arise during the process.
Unfortunately, there are no federal surrogacy laws in the United States, so how you pursue a surrogacy arrangement will depend on what kinds of processes are allowable in your state. There are also several different aspects to surrogacy laws that you’ll need to be aware of before getting started.
In this article, we’ve broken down some of the U.S. surrogacy laws you should know, but this should not be taken as legal advice or be your only source of research. The best way to determine where surrogacy is legal is by speaking to your local surrogacy attorney.
First: What You Should Know
Because surrogacy is a rapidly advancing area of medicine, traditional surrogacy laws have not been able to keep up with all the recent changes. Therefore, many surrogacy laws in the U.S. are outdated or don’t even exist because of the relative youth of the surrogacy industry.
However, there may be a difference between the laws regulating surrogacy in a certain state and how they’re actually enforced. Especially in states where there are no gestational surrogacy laws, lawyers have to be creative about protecting their clients in surrogacy agreements. In addition, some judges may be more lenient that others in interpreting certain surrogacy laws. For example, even though American Surrogacy's Midwest headquarters are subject to less-than-friendly Kansas surrogacy laws, our relationship with area judges allow for a more liberal interpretation of the law — making a surrogacy in these central states just as easy as one in a state with more liberal laws.
That’s why it’s necessary that you speak with an experienced local surrogacy attorney, as they will have a better idea of exactly how the laws are implemented in your state and how that will affect your surrogacy process.
The Different Legal Issues with Surrogacy
As mentioned before, there are several legal issues with surrogacy in the U.S. Many of these laws govern critical aspects of the surrogacy process. Here are some examples:
1. Commercial Surrogacy Laws
While many surrogacy professionals today encourage base compensation for surrogates, it can be a complicated legal matter. Some states completely outlaw any kind of compensation for surrogates, while other states place a limit on how much money can be given to reimburse a surrogate for her pregnancy-related expenses. If you don’t follow the proper restrictions of your state, you could face criminal charges.
2. Traditional Surrogacy Laws
While gestational surrogacy is the more commonly used method of surrogacy today, intended parents and surrogates may still have the option of completing a traditional surrogacy (where the surrogate uses her own egg in the implanted embryo). However, traditional surrogacy is outlawed in many states, so you’ll need to check with a lawyer if you’re considering this kind of surrogacy.
American Surrogacy only handles gestational surrogacy cases but, if intended parents need an egg donor to complete their gestational surrogacy, our surrogacy specialists can help explore their options for finding one.
3. The Enforceability of Surrogacy Contracts
Another contested area of is whether or not a surrogacy contract can be legally enforced. There are some states that do not allow for this, which makes it incredibly risky for a surrogate or intended parent to begin the surrogacy process there. Without legal enforceability, surrogates may not receive agreed-upon compensation or it might be more difficult for intended parents to establish their legal parental rights to the child — and more. If you are trying to complete the surrogacy process in a state that does not enforce contracts, it may be difficult to find a lawyer who will complete your surrogacy agreement. It’s also important to know that certain states completely outlaw surrogacy contracts, so completing one in those states may result in criminal charges.
4. The Availability of Pre-Birth Orders
One of the more complicated aspects of surrogacy is establishing parentage. Because some state laws assume that the woman who gives birth is the legal parent of the child (along with her husband, if she’s married), intended parents will need to take additional legal steps to protect their parental rights to a child born via surrogacy. Some of these parentage orders can be completed before birth, some are only active after the baby is born, and yet others need to be completed through adoptions or other post-birth procedures. These surrogacy laws will also affect whether or not intended parents can place their names on the baby’s birth certificate right away. Again, when parentage can be established will depend on the state’s laws.
When researching gestational surrogacy laws in the U.S., it’s important to remember that the applicable laws will be based on the state where the surrogate delivers (if different from where the intended parents live). If you are an intended parent, your surrogacy specialist and surrogacy lawyer will make sure you’re aware of the laws of your surrogate’s state.
States Laws for Surrogacy
That brings up a good question: “Where is surrogacy legal?” In most of the United States, surrogacy laws are favorable, with variations of certain aspects in different states.
In states were surrogacy is protected, the surrogacy laws are favorable: permitting surrogacy contracts, granting pre-birth orders and naming both parents on the birth certificate.
As you research, you may come across information on states that are “unfavorable” to surrogacy. There are different reasons why states may be unfavorable to surrogacy, but surrogacy laws in those states may prohibit compensated surrogacy or make it impossible for both intended parents to be listed on their child’s birth certificate. If you’re considering surrogacy in one of these states, it’s critical you talk to a lawyer to see what options are available to you — and how you might protect yourself from the legal issues with surrogacy in these states.
It’s also important to note that surrogacy laws will vary even within those "unfriendly" states — sometimes depending on the county and the judge involved. Some lawyers have established relationships with judges that make surrogacies more possible than the state’s laws may initially dictate, so you shouldn’t rule out a surrogacy in a certain state just because of its surrogacy laws. American Surrogacy can better help you understand in which state a surrogacy may or may not be possible.
All states will vary in regards to gestational surrogacy laws, so it’s important you work with an experienced surrogacy attorney to protect yourself during the surrogacy process. American Surrogacy can help by referring you to appropriate professionals in your state.
Understanding the legal implications of surrogacy in your state can be complicated and may seem intimidating, but don’t let surrogacy laws (restrictive or otherwise) prevent you from pursuing surrogacy. What is written in state laws may not represent the way surrogacy is really practiced there, so don’t be discouraged.
To learn more about the surrogacy laws in your state, contact a surrogacy specialist at 1-800-875-2229 today.