Surrogacy has become an increasingly popular option for people looking to expand their families. However, the legal landscape surrounding surrogacy in the United States is complex and varies significantly from state to state.
The legal framework
Surrogacy can be broadly categorized into two types, gestational surrogacy and traditional surrogacy. Understanding the differences and similarities between the two is critical when you are thinking about becoming a parent in this way.
Gestational surrogacy
The surrogate carries a child conceived through in-vitro (IVF) using the egg and the sperm of the intended parents or donors.
Traditional surrogacy
The surrogate uses her own egg and is therefore genetically related to the child. As you can imagine, the legal treatment of these two types of surrogacy varies significantly.
State-by-state breakdown
Not all states view surrogacy favorably and some restrict it altogether. While that may seem shocking, this is an evolving area of the law and often times when the law is changing in a particular area, it takes some time for legislation to catch up with societal norms.
- California, Illinois and New York have clear legal frameworks that support gestational and traditional surrogacy. Citizens of these states typically do not have as much trouble–at least legally– making surrogacy work for them.
- Texas and Florida have been–historically– ambiguous about surrogacy, and only partially address it. This can be confusing, as the laws surrounding this important milestone is neither black nor white, and legislation that is more clear and specific to surrogacy would be helpful. Florida surrogacy laws are restrictive.
- Michigan and Nebraska prohibit or have prohibited surrogacy agreements, raising legal concerns for intended parents and surrogates, as they are limited in what they can do. For example, until April 2024, Michigan criminalized surrogacy. Nebraska currently prohibits paid surrogacy by deeming those contracts invalid.
- The American Society for Reproductive Medicine makes an attempt to keep up with the evolving laws in each state. Please keep in mind that regulation changes often, and you should check with an attorney to learn more about the laws in your state.
Important considerations in surrogacy
- It is critical for families who want to try surrogacy to have legal counsel familiar with surrogacy laws in their respective states. It is critical because of the stark difference between states in how they view surrogacy.
- In some jurisdictions, intended parents can request a pre-birth order from the court, which establishes their legal rights and parentage before the child is born. This is especially important in states where the laws are not so clear.
- Having a well-drafted surrogacy agreement is essential, outlining the rights and responsibilities of all parties involved, including compensation, medical care and any contingencies related to the pregnancy.
- The laws governing surrogacy can be influenced by the residency of the intended parents and the surrogate. In some cases, it may be beneficial to pursue surrogacy in a state that has more favorable laws.
As the surrogacy landscape continues to evolve, it is essential for intended parents and surrogates to remain informed about the legal implications of their arrangements. Understanding the differences in surrogacy laws across the United States can help individuals make informed decisions and navigate the complexities of the surrogacy process.
If you are considering surrogacy, whether as an intended parent or a surrogate, consulting with an attorney with experience in surrogacy laws,