Worldwide Surrogacy Specialists
2/15/21
When you're caught up in the excitement of exploring ways to grow your family, you may overlook one very important factor: your zip code.
Surrogacy legislation varies state-by-state throughout the country, from strictly prohibitive to highly permissive. While many states have legislation directly concerning rights for both Intended Parents and surrogates, you should know about any notable exceptions in your resident state.
One of the most important steps in your surrogacy journey is by looking at your state legislation. We've compiled a breakdown of surrogacy laws and pre-birth orders by state below?the perfect place to start if you're seeking a surrogate or offering services to help start (or grow!) a family.
There is no statute or published case prohibiting gestational surrogacy in Alabama, though surrogacy agreements are explicitly excluded from the Alabama Parentage Act.
Pre-birth parentage orders may be obtained, though post-birth orders are easier. The legal parents are determined on a case-by-case basis by county.
There is no statute or published case prohibiting gestational surrogacy in Alaska, nor any instructive published Alaska opinions. Similar to Alabama, the legal parents are determined on a case-by-case basis by county.
Surrogacy contracts are specifically prohibited by Arizona Revised Statute �� 25-218. While surrogacy contracts remain unenforceable, courts may grant pre-birth orders for Intended Parents.
Gestational surrogacy is specifically permitted in Arkansas. The only exception to the statute is an unmarried same-sex couple using an egg or sperm donor, in which only the biological parent can obtain a pre-birth order. The non-biological parent must do a second parent adoption outside of the state. If anonymous sperm is used, the intended mother will be named as the child's parent.
Gestational surrogacy is specifically permitted by statute in California, and is one of the most supportive surrogacy states in the country with multiple long-standing supporting case laws. Starting in January 2016, California's Assisted Reproduction Law was adopted to better protect families having children through assisted reproduction.
Both Intended Parents may be declared legal parents in a pre-birth order regardless of their marriage status, biological relation, or whether or not they're same-sex.
There is no statute or published case prohibiting gestational surrogacy in Colorado, although Intended Parents may petition for a pre-birth order regardless of their marriage status, biological relation, or whether or not they're same-sex.
Gestational surrogacy is condoned in Connecticut by Conn.Gen.Stat.��7-48a.
Victoria T. Ferrara, our Founder and Legal Director, considers the landmark decision of Raftopol v. Ramey to be one of her greatest achievements. The Supreme Court case resulted in granting an Intended Parent rights to a child via a gestational agreement regardless of genetic connection to the child to be born to the gestational surrogate, and created a new way to establish legal parentage in Connecticut.
Gestational surrogacy is specifically permitted by the Gestational Carrier Agreement Act in Delaware as long as the gestational carrier is "not a parent of a child born as a result of a gestational carrier arrangement." The enforcement of pre-birth parentage orders is stayed until after the child's birth.
Gestational surrogacy is specifically permitted by statute in Florida for married couples who are allowed to file Petitions for Affirmation of Parental Status.
Pre-birth parentage orders are permitted to Intended Parents if at least one parent is genetically related to the child, though not if they're unmarried or if they're a single parent. Intended parents cannot be declared legal parents if neither are genetically related to the child.
There is no statute or published case prohibiting gestational surrogacy in Georgia, though their legal statutes concerning LGBTQ rights may cause complications for same-sex couples while filing for parentage.
The only limitation Intended Parents will meet in being declared legal parents are those using an egg or sperm donor, in which case careful documentation of the legal rights to the embryos during IVF is required.
There is no statute or published case prohibiting gestational surrogacy in Hawaii. Similar to Vermont, there are no pre-birth parentage orders granted?only post-birth. In addition, only biological parents may be declared legal parents. The non-biological parent must file for second parent adoption.
There is no statute or published case prohibiting gestational surrogacy in Idaho, although only genetic parents may be recognized as legal parents in post-birth parentage orders. According to a 2016 case law, the non-biological parent must file for second parent adoption.
Gestational surrogacy is specifically permitted by statute in Illinois, and the statute does not deem pre-birth parentage orders necessary. The statute allows Intended Parents to bypass courts altogether and obtain a birth certificate directly from Vital Records. No parentage will be granted if there isn't at least one parent genetically related to the child.
Gestational surrogacy contracts are specifically voided?and therefore unenforceable?under statute. Pre-birth parentage orders may be granted if one parent is genetically related to the child, though there are specific limitations in place if one parent is not genetically related to the child.
However, there are potential legal complications. A 2013 court case ruled that the surrogate mother is the legal parent of a child that was conceived using another woman's eggs.
In February 2018, the Iowa Supreme Court determined that surrogacy contracts are officially enforceable under Iowa law.
State law gives Iowa a unique set of gestational surrogacy limitations, similar to those of Nebraska. The woman bearing the child is presumed to be the legal mother, which means that only the intended father/biological father may obtain a pre-birth order. Iowa Code �� 710.11 also specifically exempts a "surrogate mother arrangement" from a law that otherwise makes it a felony to buy or sell a human being.
There is no statute or published case prohibiting gestational surrogacy in Kansas, though two attorney general opinions suggest that surrogate parenting agreements are unenforceable.
Courts will only grant pre-birth parentage orders to biological parents. Non-genetically related parents must do a step-parent adoption.
There is no statute or published case prohibiting gestational surrogacy in Kentucky, though traditional surrogacy agreements are void, and compensation for facilitating a surrogacy contract is prohibited. Pre-birth parentage orders may be granted on a case-by-case basis.
Traditional surrogacy agreements are null, void, and unenforceable as contrary to public policy, though the state does not address gestational surrogacy.
Gestational surrogacy is specifically permitted by statute in Maine as long as the requirements of The Maine Parentage Act are met. Parentage may be granted to Intended Parents regardless of their marriage status, biological relation, or whether or not they're same-sex.
Gestational surrogacy is specifically permitted by statute in Maryland, though compensation is strictly illegal under state law. Parentage may be granted to Intended Parents regardless of their marriage status, biological relation, or whether or not they're same-sex.
Gestational surrogacy is specifically permitted by statute in Massachusetts, thanks to three notable court cases. Parentage may be granted to Intended Parents regardless of their biological relation or whether or not they're same-sex. Only unmarried couples face specific limitations in terms of legal parentage.
Surrogacy contracts are specifically prohibited by the Michigan Surrogate Parenting Act MCL Section 722.851, which also includes criminal penalties should surrogacy contracts for compensation be arranged.
A bill passed in 2008 clarified the laws around artificial insemination and use of surrogate mothers, with a number of requirements and definitions. Pre-birth parentage orders may be granted on a case-by-case basis.
There is no statute or published case prohibiting gestational surrogacy in Mississippi, though there are no laws deeming surrogacy contracts as enforceable. Pre-birth parentage orders may be granted on a case-by-case basis, except for unmarried same-sex couples using an egg or sperm donor.
Missouri follows the Uniform Parentage Act, which requires all court orders to wait until after the child's birth. Parents may petition for petition before then, and in many cases, will be successful in attaining parentage.
There is no statute or published case prohibiting gestational surrogacy in Montana.
State law gives Nebraska a unique set of gestational surrogacy limitations, similar to those of Iowa. Surrogacy contracts are void and unenforceable, and the surrogate must be named as a parent on the birth certificate.
Gestational surrogacy is specifically permitted by statute in Nevada. Pre-birth parentage orders may be granted regardless of a couple's marriage status, biological relation to the child, or whether or not they're same-sex.
Gestational surrogacy is specifically permitted by statute in New Hampshire. Pre-birth parentage orders may be granted regardless of a couple's marriage status, biological relation to the child, or whether or not they're same-sex.
Gov. Phil Murphy signed the New Jersey Gestational Carrier Act in May 2018, officially legalizing gestational surrogacy in the state of New Jersey.
Most of the states on this list have statutes that either expressly permit or prohibit gestational surrogacy agreements?similar to Tennessee, New Mexico has a statute that does the exact opposite. The New Mexico Uniform Parentage Act states that gestational surrogacy agreements are neither permitted or prohibited by the state. Pre-birth orders are granted on a case-by-case basis with state-specific limitations.
The Child-Parent Security Act (CPSA) went into effect on February 15, 2021, officially legalizing gestational surrogacy. The law established legal criteria for gestational surrogacy agreements to provide "the strongest protections in the nation" for parents and surrogates while establishing a surrogate's bill of rights and streamlining the process for establishing legal parentage.
You can learn more about the impact CPSA has on surrogates and Intended Parents in New York in an exclusive webinar we hosted with New York Attorney Amy Demma. Download Surrogacy Law: The Changing New York Landscape here.
There is no statute or published case prohibiting gestational surrogacy in North Carolina, though orders are considered favorable if gestational. Pre-birth orders are granted on a case-by-case basis, though only if at least one parent is genetically related to the child.
While New York has one of the strictest gestational surrogacy agreements in the country (link here), North Dakota law states the opposite. The relevant statute is straightforward: A child born to a gestational carrier is the child of the Intended Parents for all intents and purposes. Additionally, the code prohibits abortion based on sex selection of a genetic defect.
While gestational surrogacy is recognized, the state voids traditional surrogacy contracts.
Gestational surrogacy is specifically permitted by case law in Ohio. The Supreme Court confirmed that gestational surrogacy is not again public policy in 2007 and are therefore deemed enforceable, though restrictions do apply. Pre-birth orders may be granted on a case-by-case basis.
There is no statute or published case prohibiting gestational surrogacy in Oklahoma, though an attorney general opinion suggests that compensation be limited to medical expenses. Pre-birth orders are granted on a case-by-case basis, and unmarried couples/single parents may not be declared legal parents post-birth.
There is no statute or published case prohibiting gestational surrogacy in Oregon, and the state has been referred to as "lenient." Pre-birth orders are granted on a case-by-case basis.
There is no statute or published case prohibiting gestational surrogacy in Pennsylvania, though in one legal case, the Superior Court struck down a trial court's holdings that a surrogacy contract was contrary to public policy, making gestational surrogacy contracts enforceable. Regardless, both surrogacy contracts and pre-birth parentage orders vary widely by county.
There is no statute or published case prohibiting gestational surrogacy in Rhode Island, but unlike most other states that lack specific legislation, only the Chief Judge of Family Court hears surrogacy petitions. Additionally, pre-birth parentage orders may be granted regardless of a couple's marriage status, biological relation to the child, or whether or not they're same-sex.
There is no statute or published case prohibiting gestational surrogacy in South Carolina, though in one instance, the U.S. District Court referred to a Gestational Carrier Agreement in a court case, which implied the document's validity. Pre-birth parentage orders may be granted regardless of a couple's marriage status, or whether or not they're same-sex, though only the biological parent can obtain legal parentage.
There is no statute or published case prohibiting gestational surrogacy in South Dakota. Both Intended Parents may be declared legal parents in a pre-birth order regardless of their marriage status, biological relation, or whether or not they're same-sex.
Most of the states on this list have statutes that either expressly permit or prohibit gestational surrogacy agreements?similar to New Mexico (link here), Tennessee code simply defines surrogacy. Traditional surrogacy agreements are enforceable, though subject to several restrictions.
Additionally, there are specific requirements put in place regarding legal parentage. For example, an intended father may obtain a pre-birth order as a single parent using his own sperm, but the surrogate mother will be named on the birth certificate. When the roles are reversed, the father will be shown as "unknown."
Gestational surrogacy is specifically permitted by statute in Texas, though permissions refer only to married Intended Parents. Both Intended Parents may be declared legal parents in a pre-birth order regardless of their marriage status, biological relation, or whether or not they're same-sex, though this varies on a case-by-case basis (specifically regarding unmarried couples).
Gestational surrogacy is specifically permitted by in Utah following the J.R. v Utah case, though the statute includes regulations on the formation and execution of surrogacy agreements. Unlike Texas, which varies on a case-by-case basis, the statute in Utah is strict regarding pre-birth orders?they may only be made to married couples.
There is no statute or published case prohibiting gestational surrogacy in Vermont, though there have been a number of legal cases ruling that custody should not always be linked to biology.
Similar to Hawaii (link here), there are no pre-birth parentage orders granted?only post-birth. In addition, only biological parents may be declared legal parents. The non-biological parent must file for second parent adoption.
While gestational surrogacy is permitted by statute in Virginia, there are strict restrictions when compared to other states on this list, particularly when it comes to the surrogate. Compensation is limited to only medical and ancillary expenses, and the carrier may not give her consent until three days after the child's birth. Additionally, the Intended Parents must be married.
Washington's gestational surrogacy laws differ from other states in the country. Only compassionate (non-compensatory) gestational surrogacy is permitted.
While their surrogacy laws differ, their statute is similar to others in that parentage may only be established post-birth. Still, parentage may be obtained without court intervention, which is relatively unusual.
West Virginia has a statute that explicitly permits surrogacy, but lacks detail. Intended parents may be declared legal parents in a pre-birth order regardless of their marriage status, biological relation, or whether or not they're same-sex.
Gestational surrogacy contracts are enforceable in Wisconsin, though unlike in other states, they add a notable requirement: that the certificate be in the child's best interest. Pre-birth orders are made, but only finalized post-birth, regardless of the parent's or parents' marriage status, biological relation, or whether or not they're same-sex (though this varies by county).
While most of the states on this list have statutes that either expressly permit or prohibit gestational surrogacy agreements (with the exception of New Mexico and Tennessee), Wyoming code neither authorizes or prohibits gestational surrogacy contracts.
Wyoming very rarely has instances of surrogacy, though it is technically legal for Intended Parents who live in Wyoming to finalize their parental rights.
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