The Surrogacy Legal Process

Your Guide to Surrogacy Laws in the U.S.

Key Points

Whether you’re thinking about surrogacy as a path to parenthood or are in the process of becoming parents through surrogacy, it is important to familiarize yourself with surrogacy laws in the U.S. Since gestational surrogacy laws vary state by state, working with a surrogacy professional can help you confidently navigate the laws depending on your situation.

The U.S. doesn’t have any federal laws regarding surrogacy, so the way you pursue a surrogacy arrangement will depend on the processes allowed in your state. This guide will help you understand the different aspects of surrogacy laws that you’ll need to be aware of as you navigate your surrogacy journey.

To learn more about the surrogacy laws specific to your state, contact a surrogacy professional now to receive personalized support.

What is Surrogacy Law?

Because surrogacy is still an emerging family-building option, it is continuously evolving, which means the laws surrounding it are always changing as well.  

Some states don’t have gestational surrogacy laws forcing lawyers and attorneys to be creative about protecting their clients in surrogacy agreements. Also, some judges are more lenient than others when it comes to interpreting surrogacy laws.

This is why it’s crucial to work with an experienced attorney familiar with the surrogacy laws in your state, as they’ll have a better idea of how the laws are implemented and how they will affect your surrogacy process.

Legal Issues Surrounding Surrogacy Law

There are several legal issues with the laws on surrogacy in the U.S. that you need to be aware of. Many of these laws control critical aspects of the surrogacy process. Here are some of the legal issues to consider:

1. Commercial Surrogacy Law

Although many surrogacy professionals today encourage compensation for surrogates, it’s a complicated legal matter that is determined by the state you live in. Some states completely outlaw any kind of compensation, while others limit the amount of money the surrogate can receive to reimburse for pregnancy-related expenses.

When you begin the surrogacy process, make sure to check with your surrogacy professional about how much compensation you can provide for the surrogate. If you don’t follow the surrogacy laws in your state, you could face criminal charges.

2. Traditional Surrogacy Law

Even though gestational surrogacy is the more common method of surrogacy today, some parents and surrogates may have the option of completing a traditional surrogacy. This form of surrogacy involves the surrogate using her own eggs in the implanted embryo.

If you ever want to pursue this path, know that traditional surrogacy is outlawed in several states. You’ll have to work with your surrogacy professional to understand your state’s traditional surrogacy law if you’re considering this kind of surrogacy.

3. Surrogacy Contracts

Another legal issue to consider as you’re embarking on your surrogacy journey is the enforceability of surrogacy contracts. Surrogacy contracts are a necessary part of surrogacy laws as they protect everyone’s rights and interests. There are some states that don’t enforce surrogacy contracts, which would make it risky for you to begin the process there.

Without legal enforceability, it may be more difficult for you to establish your parental rights to the child. Finding a lawyer who will complete your surrogacy contract can be difficult in a state where contracts aren’t enforced. Make sure to consult with your surrogacy professional to learn how surrogacy contracts are enforced in your state.

4. Pre-Birth Orders

Establishing parentage is one of the more complicated surrogacy laws that can affect how your journey goes. Since some states assume that the woman who gives birth is the legal parent of the child, you may need to take additional legal steps to protect your rights.

Some states allow parentage orders before the child’s birth, while others only allow these orders to become active once the baby is born. In certain situations, parentage orders can only be completed through adoptions or other post-birth procedures. These surrogacy laws also affect whether or not your name can appear on the birth certificate right away. Your surrogacy professional will help walk you through the ins and outs of the surrogacy laws in your state.

Understanding State Surrogacy Laws

In most of the U.S., surrogacy laws are becoming more favorable, with variations in different states. In states where surrogacy is protected, surrogacy laws tend to be more favorable by permitting surrogacy contracts, granting pre-birth orders and naming both parents as the legal guardians on the birth certificate.

Here are some states that are surrogacy-friendly:

If you live in a different state than the ones listed above, make sure to consult with your surrogacy professional to learn about the surrogacy laws in your state. Your surrogacy professional will always be by your side to help you legally navigate the surrogacy process.

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