For intended parents living in the U.S. who are unable to conceive naturally, surrogacy is a great option, as it’s socially accepted and legal almost everywhere. However, although surrogacy is allowed in most states to some degree, not all of them are created equal.
Not all states have the same surrogacy laws, meaning that some are more “surrogacy-friendly” than others. In the following article, we will review everything both intended parents and potential surrogates need to know regarding surrogacy laws state-by-state, including what to look for in surrogacy-friendly states and which are the best states for surrogacy in 2023.
Is Surrogacy Legal In All 50 States?
It’s complicated, but the short answer is no. Although surrogacy in some form is allowed in most states, there are levels of legalities and protections that vary from place to place, meaning there is no federal law that makes surrogacy legal across all the board. It’s also important to note that there are two different types of surrogacy: traditional vs. gestational. Depending on the laws of the state in question, one type of surrogacy may be legal while the other isn’t.
It does need to be clarified that gestational surrogacy has become far more widely accepted and practiced than traditional surrogacy, however, since there are often laws on the books that are outdated and don’t keep up with current practices, there are still some states that have laws against or limiting various forms of gestational surrogacy.
Prior to beginning your surrogacy journey, it’s important to work closely with the surrogacy agency you’re interested in, in order to review any state laws that may impact your case. They have a trained team that’s well versed in the level of surrogacy permissions in each state, and can guide you through the process every step of the way.
Should I get a surrogacy lawyer?
Absolutely – in order to avoid any legal hurdles and possible heartache, you should always work with a surrogacy lawyer! Surrogacy laws vary greatly depending on the state in question, and the job of the surrogacy lawyer is that everything stays 100% legal, and that every party is always completely and thoroughly protected. It’s also important to note that most states have a legal requirement that stipulates the surrogate and the intended parents must obtain separate legal representation, in order to avoid any conflicts of interest.
This includes drafting the surrogacy contract, which will be written and completed according to the laws of the state in question. This is one of the most essential documents in the entire surrogacy process, so making sure that it’s completely ironclad and unable to be challenged is of the utmost importance. An excellent surrogacy lawyer that knows their laws top to bottom, will go above and beyond to ensure that the interests and health of both the surrogate mother and the intended parents are adequately represented.
If you’re worried about how to obtain the best legal representation for all things surrogacy-related, don’t worry! When you commit to a surrogacy agency, they will automatically put you in touch with a reputable attorney. This is one of the major benefits of working with an agency and a team full of experts – they can guide you through every step of the surrogacy process, which can often be complicated, nuanced, and overwhelm those who are new to the concept.
For more information on reputable lawyers that can represent you and your surrogacy case, you can also check out the American Academy of Assisted Reproductive Technology Attorneys (AAARTA). They have a list of accredited lawyers in each state so you can receive expert legal advice that applies to your current living situation.
How do surrogacy laws differ state by state?
Since there are no federal laws on the books that allow or protect surrogacy, it falls on the states to decide the legalities surrounding this fast-growing fertility treatment. And since many states don’t have any laws on the books regarding surrogacy, and are simply upholding court case decisions from the past, things can get a bit complicated. As an intended parent, you can live in ANY state and still pursue surrogacy, as long as your gestational carrier gives birth in a surrogacy-friendly state. For surrogate candidates it can get a little bit tricky, especially if living in a state that’s not favorable to surrogacy, since the laws and legal precedent where the surrogate mother resides, are what govern the legality of the surrogacy.
States and their laws regarding surrogacy can be broken down into three different levels: the best (surrogacy friendly), the worst (not-surrogacy-friendly), and the in-between (neutral, and neither favorable nor unfavorable). And these states – and their laws – impact the surrogate the most, since it’s where she resides and delivers that will impact the legality of her pregnancy and the intended parents’ parentage. In short, the state where the baby is born will have legal jurisdiction. This is why it’s so important to work both with an excellent surrogacy agency and reputable fertility law attorneys in order for all legal matters to be sorted and clear well before the delivery date, making the process smooth for everyone involved
What makes a state the best for surrogacy?
Not all states are created equal – especially when it comes to laws regarding surrogacy. And the states that make the top pick as being surrogacy-friendly, all share the same thing: they protect the legality of the surrogacy, by offering clear and concise support of the intended parents and their parentage. Let’s delve into what makes those states the best choice for intended parents looking to grow their family.
Clear surrogacy laws on the books
Not all states have clear and precise laws when it comes to surrogacy, so a surrogacy-friendly state will have specific precedent or outright legal statues that are written to protect legal parentage. (legal and enforceable)
For a state to be surrogacy-friendly, it also has to specifically allow for commercial surrogacy, which means it’s legal for the surrogate mother to be compensated for her time and commitment. Which makes perfect sense! A gestational carrier devotes her entire body and being in order to provide a happy ending for a hopeful family. As a result, offering fair compensation can help ensure a more harmonious relationship and healthier pregnancy.
Pre-birth orders are allowed
Establishing legal parentage is an absolutely crucial part of the surrogacy process. Intended parents must be able to successfully and efficiently establish that they and only they are the legal parents and guardians of the newborn baby that will be delivered via surrogacy. In order for this to be legally sound, a parentage or birth order must be obtained.
The intended parents file this documentation through the state’s Office of Vital Records and – once approved by the family court judge – they become the legal parents of the child.
In states that are the best for surrogacy, the pre-birth order is allowed to be filed beforehand, which means that the intended parents become legally bound in parentage prior to the baby being bored, therefore avoiding any further stress and complications that would come from the additional legal wrangling after the delivery.
On the contrary, in states that are not considered to be surrogacy-friendly, a pre-birth order might be prohibited, and instead the intended parents would have to wait to legally adopt the child after the birth, adding more steps to the process. This can result in additional obstacles and headaches for the intended parents, and make the process unnecessarily complicated.
You can enforce a surrogacy contract
An ironclad surrogacy contract is absolutely non-negotiable and its importance can’t be understated: it’s imperative to make sure that all aspects of the surrogacy process are addressed and covered, and this relates to both the surrogate and the intended parents. The surrogacy contract is a vital document that is the foundation for all matters between both parties, and which specifies out important details such as: stating the obligations of both parties, establishing the parental rights of the intended parents, and even determining how much the surrogate will get paid.
However, not all states consider surrogacy contracts to be enforceable. Which is why it’s best to always try and pursue your journey in a surrogacy-friendly state – as they will almost always recognize and uphold your contract, as long as it’s legally sound and follows all the state laws. The best way to ensure that your surrogacy contract will be enforced, is to connect with a reputable surrogate agency that partners with excellent accredited surrogacy lawyers, and choose a surrogate-friendly state to complete your dream of becoming parents.
Surrogacy-friendly insurance policies are available
Although using insurance to cover any surrogate costs used to be extremely rare, nowadays it is quite possible that a portion of the surrogacy process might be covered by a specific insurance policy. This of course often depends heavily on your coverage and plan – thankfully, your surrogate agency can connect you directly with a broker, who can help the intended parents secure an insurance plan that may be able to cover some – if not all – of the surrogacy process.
In the event that your surrogate candidate doesn’t possess a surrogacy-friendly insurance policy, then your agency will do one of two things:
- Purchase a policy from New Life Agency (underwritten by Lloyd’s of London) to cover the surrogate’s pregnancy.
- Or, obtain a separate policy for the surrogate through the agency’s specialized insurance broker.
Whatever the final choice, this can result in significant savings for the intended parents during the surrogacy process.
Connections to world-renowned fertility clinics
The best states for surrogacy also boast some of the most advanced and reputable fertility clinics in the nation. It makes sense that the top fertility doctors and ART laboratories would set up shop in states where the treatments they offer patients are supported and protected by law. Reputable fertility clinics are important, since for most intended parents in vitro fertilization (IVF) is the first step in the overall surrogacy journey. Once a viable embryo is created, the surrogate can then become pregnant through a procedure known as an embryo transfer. Both of these procedures are managed and completed by a team consisting of physicians, nurses, and embryologists at a fertility clinic, so selecting one that has unparalleled expertise, a good reputation, and high success rates is extremely important. And by default, the top clinics in the nation are usually located in big cities and in surrogacy-friendly states- as they have the better resources and seasoned physicians who can perform all the necessary procedures – safely and effectively. .
Access to the great surrogacy agencies
Along with a top-notch fertility clinic, choosing a reputable surrogacy agency is the best way to secure a successful and healthy surrogacy journey. And again, the best surrogacy agencies can be found in surrogacy-friendly states – as the growing demand for surrogacy services has led to a great number of agencies setting down roots where they know surrogacy is legal and protected.
However, it’s important to remember that the best agencies will work with surrogates and intended parents from all over the country, so if access in your home state is limited, don’t panic! A seasoned surrogate agency is ready to service clients from all over the world, and will be well-versed in all the current state laws regardless of where you live – so that the surrogacy process and the establishing of parentage can be an easy and seamless process.
RELATED ARTICLE: How To Find The Best Surrogacy Agency In California
What states are the best states for surrogacy in 2023?
Because the laws on the books are always changing, it’s important to keep updating the states that are the best choice for those who are pursuing surrogacy. For instance, Idaho used to be on a list of states that wasn’t very surrogate friendly, based on the fact that there were no laws protecting surrogacy, and pre-birth orders were NOT granted in the state – meaning parents were forced to adopt their baby after it was born. Fast forward to July 2023, where a new law has just passed, which allows Idaho to be now considered a “green light” state – making them one of the t most favorable states for surrogacy services.
Here is the updated list of the most surrogacy-friendly states in the nation:
- District of Columbia
- New Hampshire
- New Jersey
Pursuing a surrogacy journey in any of the above-mentioned states, should result in a worry-free and seamless process for all parties involved.
Are there other states that allow surrogacy?
Although not as surrogacy friendly as the states mentioned in the previous section, the following are still accommodating enough for any potential candidate or intended parents residing or using services in such states, to feel comfortable in their decision:
- New York
- North Carolina
- North Dakota
- New Mexico
- South Carolina
- South Dakota
- West Virginia
Which states aren’t surrogacy-friendly?
There are a handful of states where surrogacy protections are lacking, surrogacy contracts are void, or where commercial surrogacy is even outlawed outright, and in some cases, intended parents are denied legal parentage. Intended parents should tread lightly and seek out the guidance of a fertility attorney or their surrogate agency, if they’re considering one of the states listed below:
For the following states, proceed with caution. Although surrogacy can occur in these states, some stipulations may be in place, such as: the intended parents must be married if they’re a couple, if using an egg donor, the newborn baby must be adopted post-birth by the intended mother, rather than beforehand, or in a traditional surrogacy, a gestational carrier has to wait 4 days after delivery before she can sign the child over to the intended parents. Such legal hurdles can take a toll on an already stressful surrogacy journey, so it’s best to be aware of them beforehand.
These next states are not favorable towards surrogacy, and should be regarded with care. Surrogacy contracts in both Arizona and Indiana are not enforceable nor recognized, although some courts have started to grant pre-birth parentage orders based on past court cases. And although surrogacy arrangements continue in both states, it’s best for all parties involved to be aware of the risks.
The following states are the most unfavorable towards surrogacy, and should be a red flag for intended parents and surrogate candidates alike. These states have the strictest laws when it comes to surrogacy, ranging void and unenforceable contacts, to commercial surrogacy being outlawed, penalties imposed on commercial surrogacy contracts, and in cases of traditional surrogacy, the biological father is recognized as the sole legal parent, exempting the intended mother from all parental rights. Such obtuse and strict statutes make the three states below extremely antagonistic towards surrogacy services and the intended parents who pursue them, and thus should be avoided at all costs.
The good news is that new, progressive bills are introduced into the legislature every day, with some finally passing and allowing surrogacy to be protected. It’s important to stay on top of the latest developments where legalities are concerned, which is why checking with the expert surrogate agency case managers is always recommended before committing to your surrogate journey.
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Can I Work With Surrogacy By Faith In Any State?
What can you do if you’re an intended parent and you live in one of these states that’s less surrogacy-friendly? Or maybe you’re a potential surrogate and you live in one of the states where commercial surrogacy is not legal?
Don’t worry, you can still take part in the surrogacy journey, either as a hopeful surrogate or intended parent. You just need to find the right surrogacy agency!
If you choose the right agency, they’ll be able to connect surrogate mothers and intended parents from all over the country. As an example, Surrogacy By Faith is located in Southern California, but we have years of experience in working with people from all over the country and beyond. We have experts on our team who can determine exactly which state laws may or may not apply in your given situation. Additionally, there are always workarounds to residing in a state that’s not very surrogacy-friendly.
If you’re interested in becoming a surrogate with us, please fill out our Surrogate Initial Inquiry form. Or, if you’re interested in working with us as intended parents, then proceed to our Intended Parents Initial Inquiry Form. Our knowledgeable and caring team is waiting to hear from you, and is ready to help you navigate the often complicated – but so rewarding – journey of surrogacy. Let’s work together to bring the gift of life to fruition – one God-given baby at a time.