While we would like to provide a straightforward list of states where surrogacy is legal, individual states each have their own unique laws on the subject. There are also gray areas and places where surrogacy can be practiced but contracts are unenforceable. The good news is, the majority of the states in the USA have very positive outlooks for intended parents who want to pursue surrogacy. Let’s discuss which states have made surrogacy legal.
First, Some Technical Terms
Throughout this blog post and while you research your own state’s laws, you may encounter some terms you’re unfamiliar with. Here is a short list of terms you’ll likely come across as you investigate where surrogacy is legal:
- Gestational surrogacy — A gestational surrogate is not genetically related to the baby she carries; she is not the biological mother. The baby carried by a gestational surrogate has been conceived using a donor egg.
- Pre-birth and post-birth parentage orders — Parentage is the recognition of a parent’s legal relationship to a child. Pre-birth parentage orders for intended parents are common in the surrogacy process.
- Intended parent — The person(s) who will take care of and be the legal guardian of the newborn child(ren).
States Where Surrogacy Is Legal and Relatively Straightforward
The following states make provisions for legal surrogacy. Their laws permit surrogacy, and there should be few legal hiccups throughout the surrogacy process. Pre-birth orders are granted throughout the state for all intended parents. Both of the intended parents will be named on the birth certificate and will be able to take their newborn straight home from the hospital once released.
- New Hampshire
- New Jersey
- Rhode Island
- Washington, DC
States Where Surrogacy Is Legal, But…
This next group of states does permit surrogacy; however, some parts of the process may vary depending on certain legal stipulations. For example, in Arkansas, if a couple is unmarried, only the intended parent who is genetically related to the child will be granted a pre-birth parentage order. In New Mexico, a single intended parent may have trouble obtaining a pre-birth order depending on the judge considering their case. In some of these states, you may need to obtain additional post-birth parentage orders.
- North Carolina
- North Dakota
- New Mexico
- South Carolina
- South Dakota
- West Virginia
States Where Surrogacy is Tricky
In some states, surrogacy is practiced, but there may be legal hurdles, or surrogacy contracts may be void and unenforceable. For instance, pre-birth parentage orders may not be available, and intended parents may have to apply for adoption after the baby is delivered. Same-sex couples may also have a more difficult time gaining parental rights than heterosexual couples.
- New York
States Where Surrogacy Is Extremely Restricted
In these states, contracts may be prohibited when surrogate compensation is provided or birth certificates naming the intended parents cannot be obtained. There can be severe penalties on those who participate in the surrogacy process. In Louisiana, for instance, if the legal restrictions on surrogacy are breached, all parties may be subject to fines of up to $50,000 and/or imprisonment of up to ten years.
Be sure to check your state laws for surrogacy specifics. If you are seriously considering surrogacy, you should get in touch with an attorney experienced in fertility law to guide you through the process in your state. If you are lucky enough to live in one of the many states that doesn’t make surrogacy difficult, contact Family Creations to learn how to register and start building your dream family!