Is Surrogacy Legal in the US and Canada?

In recent years, surrogacy has gained significant attention as an option for individuals and couples seeking to expand their families. However, surrogacy’s legality varies from country to country. This blog post will dive into the question: “Is surrogacy legal in the US and Canada?” We will explore the legal aspects to consider for those contemplating this option.

Understanding Surrogacy

Before we explore the legal aspects, let’s briefly understand what surrogacy entails. 

Surrogacy is an arrangement where a woman (the surrogate) carries and delivers a child for another person or couple (the intended parents). There are two main types of surrogacy: traditional and gestational.

• Traditional Surrogacy: In traditional surrogacy, the surrogate uses her eggs, making her genetically related to the child.
• Gestational Surrogacy: In gestational surrogacy, the surrogate carries a child conceived using the egg and sperm of the intended parents or donors, making her genetically unrelated to the child.

Is Surrogacy Legal in the US?

Yes, surrogacy is legal in the US, but the rules vary from state to state. Some states fully support surrogacy, while others impose restrictions or bans. Because surrogacy law is handled at the state level, intended parents need to carefully choose where to pursue the process.

States Where Surrogacy is Legal

Several states are considered surrogacy-friendly, making them popular choices for intended parents worldwide. These include:

• California – Known as one of the most surrogacy-friendly states, allowing both commercial and altruistic surrogacy.

• Nevada – Strong legal protections for intended parents.

• Connecticut, Delaware, Maine, New Hampshire, Oregon – Clear laws supporting surrogacy agreements.

In these states, courts generally recognize intended parents as the child’s legal parents, even before birth, through pre-birth orders.

States with Restrictions or Bans

Some states are less supportive or even hostile to surrogacy:

• Michigan – Commercial surrogacy contracts are criminalized.

• Louisiana – Only altruistic surrogacy is allowed and under limited conditions.

• Nebraska – Surrogacy contracts are unenforceable.

Because of these restrictions, intended parents should avoid pursuing surrogacy in such states.

Surrogacy Contracts in the US

Surrogacy agreements in surrogacy-friendly states are enforceable. They cover:

• Rights and responsibilities of intended parents and the surrogate.

• Financial arrangements (if commercial surrogacy is allowed).

• Medical decisions during pregnancy.

• Parentage rights after birth.

Having a strong contract is vital to protect both sides and avoid future disputes.

Citizenship and Parentage in US Surrogacy

In the US, children born through surrogacy are recognized as US citizens if born on US soil. This makes the US especially attractive for international intended parents. Parentage is usually established through a pre-birth or post-birth order, depending on the state.

Surrogacy Laws in Canada

Is Surrogacy Legal in Canada?

Yes, surrogacy is legal in Canada, but with one major difference compared to the US: only altruistic surrogacy is allowed.

This means surrogates cannot be paid for carrying a child, except for reimbursement of pregnancy-related expenses.

Commercial vs Altruistic Surrogacy

• Commercial Surrogacy (paying the surrogate for her services) – Illegal in Canada.

• Altruistic Surrogacy (the surrogate volunteers and only receive reimbursements) – Legal.

This legal framework aims to prevent exploitation but also creates challenges, as fewer surrogates are available compared to the US.

Canadian Surrogacy Legal Requirements

The Assisted Human Reproduction Act (AHRA) regulates surrogacy in Canada. Under this law:

• Surrogates can be reimbursed for medical and pregnancy expenses (like maternity clothes, vitamins, lost wages, and travel for medical appointments).

• Surrogates cannot be paid a fee beyond expenses.

• Agencies cannot profit from matching intended parents with surrogates.

Parentage in Canadian Surrogacy

Unlike the US, parentage is not always automatically granted to intended parents. In most provinces, intended parents must apply to the court after birth to be recognized as the child’s legal parents. This adds extra steps to the process.

US vs Canada Surrogacy Laws: Key Differences

Here’s a quick comparison of the two countries:

• Commercial Surrogacy:

  • US – Legal in many states.

  • Canada – Illegal, only altruistic surrogacy allowed.

• Cost:

  • US – $90,000 to $150,000 due to surrogate compensation and medical costs.

  • Canada – $50,000 to $80,000 (mainly medical and legal expenses).

• Contract Enforceability:

  • US – Strong legal contracts in supportive states.

  • Canada – Contracts exist but are less enforceable compared to US courts.

• Parentage:

  • US – Often granted pre-birth in friendly states.

  • Canada – Usually requires a post-birth court process.

• Citizenship:

  • US – Babies born in the US automatically become US citizens.

  • Canada – Babies born in Canada automatically become Canadian citizens.

Why Legal Guidance is Essential

Whether in the US or Canada, professional legal guidance is essential to ensure a smooth journey. Surrogacy lawyers help with:

• Drafting and reviewing surrogacy contracts.

• Navigating parentage rights in court.

• Protecting intended parents and surrogates from legal risks.

• Handling international surrogacy citizenship issues.

Without proper legal support, intended parents risk facing disputes over custody, parentage, or contract enforceability.

Where Is Surrogacy Legal?

In addition to Canada and the US, surrogacy is legally recognized and regulated in other countries, each with its unique set of rules:

• The United Kingdom allows only altruistic surrogacy.
• Australia, where regulations vary by state.
• South Africa permits both commercial and altruistic surrogacy.
• Greece, has well-regulated surrogacy practices.
• Ukraine, where commercial surrogacy is widely practiced.

You may also be interested in:

• Affordable Surrogacy in USA
• Finding the Best surrogacy Lawyer

In Conclusion

Surrogacy’s regulations vary by country and, in some cases, by region within countries.

The legality of surrogacy in the US and Canada is complex. Surrogacy laws vary between the US states and Canadian provinces. In the United States, intended parents can choose a surrogacy-friendly state that aligns with their preferences and needs. In Canada, surrogacy is legal but closely regulated, based on altruism and protecting children’s rights.

Ultimately, surrogacy can offer a beautiful path to parenthood. Still, navigating the legal aspects is crucial to ensure a successful and legally sound surrogacy journey.

If you’re still asking yourself, “Is surrogacy legal in the US?” or “Is surrogacy legal in Canada?” the answer is yes, with significant legal considerations that vary by location. Always consult legal experts to navigate the intricacies of surrogacy laws in your jurisdiction.

Is surrogacy allowed in Canada and the US? This guide explains everything you need to know about the laws, costs, legal rights and considerations about surrogacy in both countries. In the USA, surrogacy laws fluctuate state by state—some states allow commercial surrogacy, others only allow altruistic surrogacy, while still others outlaw both forms of surrogacy. In Canada, commercial surrogacy is illegal, but altruistic surrogacy is legal under stringent provisions.

Understanding the differences between US and Canadian laws is essential for intended parents, especially if parents are considering surrogacy in both countries. You will learn about contracts and agreements, the role of agencies, medical requirements, legal requirements (including obtaining residency or citizenship), and the risks associated with completing a surrogacy arrangement in another country. Inside this resource, you will be able to will compare and contrast the surrogacy regulations of the US vs Canada, see what is legally permitted, and examine how these scenarios could impact your own planning process for parenthood.