Once the idea of cost has been absorbed by intended parents, they soon realize they must also ask another pressing question – is surrogacy legal in all 50 states? More specifically, is surrogacy legal in my state? A potential gestational carrier, too, must have a clear understanding of whether or not her state is a safe place for surrogacy before starting the process.
Unfortunately, the fundamental legality of gestational surrogacy is not straightforward in the United States.
While it is, overall, one of the most surrogacy-friendly countries, there is enough variance from state to state that it requires a closer look. With no federal law to provide uniformed regulation, each state has the responsibility to create their own laws.
While not all have taken steps to do this, there are, fortunately, several states that have mandated gestational surrogacy a legal, regulated process.
Based on rulings by the California Supreme Court, the state is very favorable for gestational surrogacy. The law states that intent governs in determining parentage in a surrogacy arrangement.
There is no legal objection to surrogacy arrangements, and the state must comply with pre-birth orders.
Gestational surrogacy is permitted, as stated by a 2013 law, and parentage orders are filed pre-birth with a post-birth decree.
A 2017 bill legalized compensated arrangements with a gestational carrier and also clarifies parentage for children born via gestational carriers, egg donors, sperm donors and donor embryos.
Second only to California in terms of surrogacy-friendly laws thanks to the Illinois Gestational Surrogacy Act. The statute is favorable to gestational surrogacy.
Per the 2016 Maine Parentage Act, pre-birth orders are permitted as long as all requirements are met.
Pre-birth orders are granted, and gestational carriers must meet specific standards and requirements, such as being over the age of 21 and having previously given birth, before a surrogate pregnancy is achieved.
2018’s New Jersey Gestational Carrier Act clarifies the law as it applies specifically to gestational carriers with the following stipulations: she must be at least 21 years old, have given birth to at least one child, complete medical and psychological evaluations and retain an independent attorney. The intended parents must also complete a psychological exam.
Pre-birth orders and gestational carrier agreements are permitted.
Declarations of paternity are typically issued pre-birth and laws are surrogacy friendly.
There are several states that specifically ban or place strong limitations on gestational surrogacy. In New York, those who attempt to engage in the arrangement can be heavily fined. Michigan has imposed prison terms of up to five years (as well as a fine of up to $50,000) for engaging in any kind of contracted surrogacy. Many other states fall in a gray area – the laws are neither favorable nor unfavorable, and often handle surrogacy arrangements on a case-by-case basis.
All Things Conceivable is a blog dedicated to sharing the knowledge and expert opinions of the dedicated team at ConceiveAbilities, a Chicago-based egg donation and surrogacy agency.