Surrogacy agreements are not legal all across the United States. Laws governing surrogacy vary widely from state to state.
The most surrogacy-friendly states in the United States
Among the states considered to be “surrogacy-friendly” are those whose laws permit both compensated and uncompensated surrogacy agreements, regardless of the intended parents’ sexual orientation or marital status. In these states it is relatively easy for the surrogate to relinquish her parental rights, which instead will be granted to the intended parents with no need for post-birth legal actions.
The following states are considered to be surrogacy-friendly:
California: The law is very favorable to surrogacy in this state. Both traditional and gestational surrogacy arrangements are permitted as long as the agreement is executed before the start of the treatment.
Connecticut: There is no legal objection to surrogacy arrangements in Connecticut. In most cases, the intended parents do not need to undergo adoption proceedings to have their paternity rights recognized.
Delaware: As long as the gestational carrier is not genetically related to the child, Delaware law permits surrogacy and allows the intended parents to claim parentage before the birth of the child.
New Hampshire: New Hampshire law permits gestational surrogacy agreements regardless of the sexual orientation and marital status of the intended parents. Courts usually grant pre-birth parentage orders, even if none of the intended parents is genetically related to the child.
Nevada: Surrogacy agreements are permitted for both unmarried and married couples, regardless of the gender or sexual orientation, and for single intended parents too. Nevada law authorizes financial compensation to gestational carriers, and it also includes coverage for egg, sperm and embryo donation. As Nevada’s statutes define gestational carriers as women who do not use their own eggs for the conception of the child, traditional surrogacy is considered isky in this state.
Colorado: There is no official law specifically addressing surrogacy agreements. However, the courts are generally favorable to all different types of intended parents willing to participate in a gestational surrogacy agreement.
Georgia: There is no official law governing surrogacy in this state, but the courts are generally favorable to surrogacy agreements. There are not any restrictions regarding sexual orientation of the intended parents, and both gestational and traditional surrogacy arrangements are permitted.
Oregon: There are no laws specifically governing surrogacy arrangements in Oregon. Even so, courts are generally surrogacy-friendly and opposite-sex couples, same-sex couples or individuals can participate in this kind of arrangement. Commercial surrogacy arrangements are permitted. However, pre-birth parentage orders would be granted only to the intended parent who is genetically related to the child. In these cases, a post-birth adoption would be necessary to establish the other partner as the second legal parent.
On the other end of the spectrum, there are some states with laws specifically prohibiting or criminalizing all or part of surrogacy contracts. Some of them prohibit compensated surrogacy, while others have specific provisions in their laws that dictate who can participate in surrogacy agreements. In those states, intended parents could face fines or even criminal penalties if they enter into any kind of surrogacy arrangement that goes against the laws.
The following states are considered to be not surrogacy-friendly:
Louisiana: Louisiana law restricts surrogacy to heterosexual married couples who are using their own gametes, and, even in this case, it involves a complex and arduous legal process. Besides, surrogate compensation is forbidden.
Michigan: People engaging in any kind of surrogacy contract are subject to criminal penalties. Compensated surrogacy agreements are expressly forbidden. For altruistic arrangements, pre-birth parentage orders can be granted in very exceptional cases.
New York:Surrogate parenting contracts are considered to be void and unenforceable in New York. Anyone who enters into a compensated surrogacy agreement may be heavily fined. Altruistic gestational surrogacy agreements are not explicitly prohibited, but contracts are unenforceable. Therefore, the woman who gives birth to the child would be legally considered his or her mother, and the intended mother would have to arrange for adoption.
What about the remaining states?
Other states that have not been mentioned fall in a gray area. They must be evaluated on a case-by-case basis as their laws are neither favorable nor unfavorable to surrogacy arrangements. The legal process may be complex and most of the time shaped by the individual circumstances of the case. Intended parents considering surrogacy should review the legality of the procedure in the state where they want it to take place. Having adequate legal representation is highly recommended to guarantee the protection of both the surrogate and intended parents’ interests throughout the process.