What are Surrogacy Laws?

When it comes to surrogacy laws, there are a few important things to know:

• Gestational surrogacy laws really come down to the state your surrogacy takes place in.   
• You will need to work closely with an attorney to ensure your journey meets all applicable surrogacy laws.
• You can get more information and help starting the surrogacy process at any time by contacting us.

No matter who or where you are in the process, it’s important to understand the rules and regulations of surrogacy in the U.S. To make things a little easier, we’ve created this introductory guide to surrogacy laws. But like always, your first step should be to talk to a surrogacy law attorney and/or surrogacy specialist you can trust. Laws on surrogacy vary widely in every state, and working with an attorney will make sure you’re protected from any surrogacy legal issues that may arise.  

Please note that this article is only intended to be informational. It cannot and should not be taken as legal advice. If you have any questions while you’re reading or before you start, don’t hesitate to reach out to us or to your attorney for more information on surrogacy guidelines.  

Where is Commercial Surrogacy Legal? 

The legality of commercial surrogacy depends on where you live.

• There are many states, like California, that allow compensated and uncompensated surrogacy.
• Others, like Nebraska, outright ban compensated surrogacy.
• And there are those like Alaska where a surrogate can receive base compensation for her services, but the amount she receives is regulated.

If the compensated surrogacy arrangement goes against that state’s laws, the intended parents or surrogate may be subject to fines or criminal penalties. That’s why it’s so important for everyone involved in the surrogacy process to work with a trusted attorney who understands and can help them navigate their state’s laws. 

If you have any other questions about gestational surrogacy laws and traditional surrogacy laws, please reach out to your attorney for more information. As surrogates like Codi will tell you, working with a surrogacy lawyer and surrogacy agency is the best way to stay safe: 

“I had no idea what to do —  the process, any of it — and so having an agency really took that fear away. I could talk through it with someone; they knew all the legal ramifications and what needed to take place there,” she said.

What are Traditional Surrogacy Laws? 

Traditional surrogacy laws vary state to state.

• In most cases, traditional surrogacy is more heavily regulated or even outright banned. This is because there are additional legal and emotional risks to worry about.
• Unlike gestational surrogacy, the surrogate in traditional surrogacy is the biological and legal mother of the baby. In order for the surrogacy process to continue, she (along with her husband, if applicable) must forfeit her parental rights.
• The intended parents will also have to go through a stepparent or second adoption to establish their legal parentage.  

To avoid these complications, some state legislators decide to make it illegal. To add to this, most surrogacy professionals choose to skip it altogether and just focus on gestational surrogacy instead. 

Are Surrogacy Contracts Legally Enforceable? 

In some states, the surrogacy contract cannot be legally enforced. Naturally, this puts all parties at risk should anyone break their end of their bargain.

• Becoming a surrogate or intended parent in states where surrogacy contracts aren’t legally enforceable is a big risk for everyone involved.
• When surrogacy contracts aren’t legally enforced, it will be more difficult for intended parents to establish legal parentage and for surrogates to receive agreed upon compensation.
• It can even be a struggle to find surrogacy lawyers that will complete your surrogacy contract.  

What about Pre-Birth Orders? 

In some states, the intended parents are able to legally establish their parentage before the baby is born. In others, they will need to wait until the baby is born and complete a post-birth order or an adoption.

Your surrogacy attorney will work with you to determine which option will work in your situation depending on your state surrogate laws.  

The Legality of Surrogacy 

When you’re just starting out, you’re probably worried about the legality of surrogacy. Where is surrogacy legal? 

The reality is that very few states that are outright for or against surrogacy. In most cases, they’ll fall somewhere in the middle. This is why it’s always best to work with an experienced surrogacy attorney to find out which gestational surrogacy laws apply to you.  

In general, here is a list of very surrogacy-friendly states: 

• California 
• Connecticut 
• Delaware 
• District of Columbia 
• Maine 
• New Hampshire 
• Nevada 
• Vermont 
• Rhode Island 
• Washington 

And non-surrogacy friendly states: 

• Michigan 
• Nebraska 
• Louisiana 

In non-friendly surrogacy states:

• Pre-birth orders aren’t granted
• Traditional surrogacy is usually unenforceable
• Compensated surrogacy may be prohibited  

In surrogacy friendly states: 

• Pre-birth orders can be granted regardless of intended parents’ marital status or genetic relationship to the baby
• These states are also lenient toward compensated or uncompensated surrogacy agreements
• Things can still get murky when it comes to traditional surrogacy laws. While traditional surrogacy in these states might not be outright banned like in non-friendly surrogacy states, the laws are either unclear or legally risky.  

In other states, surrogacy laws fall somewhere in the middle. While surrogacy can be practiced, there are certain states that are considered less friendly and come with certain surrogacy legal issues that you will need to be aware of. In these regions, pre-birth orders might not be granted, or surrogacy contracts might not be legally enforceable. When in doubt, always reach out to surrogacy lawyers to learn more about the laws in your state.  

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The surrogacy process is a huge, life-changing journey. It’s important to make sure that you understand surrogacy laws with the help of an experienced attorney. We know that learning the laws on surrogacy can feel like a big undertaking, and, at times, it can be overwhelming. But in the end, when you’re holding the child for the first time, it will be more than worth it.  

When surrogate Nicole watched the intended father hold his child for the first time, it became a moment she never forgot: 

“Seeing Nicholas see his child for the first time — it was amazing,” she said. “A weight was almost lifted off of my shoulders, in a sense that he came out and he was healthy and that I was able to give [Nicholas] everything he had ever wanted.” 

If you ever have any questions about surrogate regulations or laws, please don’t hesitate to ask a surrogacy specialist or your attorney for help.