Surrogacy in the United States: How Does It Work?

The first thing to consider when it comes to pursuing surrogacy in the US is the state laws that could impact your surrogacy

Surrogacy in the USA is a complicated process as it is without having to consider the laws involved. Before starting your surrogacy journey in the US, you must know about any specific surrogacy law that applies to the area where you live. Surrogacy in the United States is governed by laws that can vary from state to state. Your surrogacy specialist should know all about these laws and update on what you need to know to keep you safe from any potential legal processes, but it’s important you do your own research too.

The United States does not have any Federal laws regarding surrogacy. Therefore, you must be up-to-date about all the local laws because there are substantial differences between states.

This article will outline some of the key points that apply in most states. Nevertheless, the best way to find all the information that you need regarding surrogacy in the USA is to get in contact with a local surrogacy lawyer (as soon as you are seriously considering pursuing a surrogacy process, consult with a qualified family lawyer).

Information That You Need to Know about Surrogacy in the USA

Surrogacy in the United States is a rapidly advancing field of medicine. Most laws are unable to change as fast as science does, which leaves a lot of grey areas and some procedures that should be regulated but aren’t. This leaves people with a lot more freedom than they thought and in some cases the laws are updated right in the middle of your surrogate’s pregnancy. The lack of surrogacy laws in some states also means that lawyers must be especially sharp and attentive to the clauses that they put in the surrogacy agreements, between the intended parents and surrogate mothers to protect their clients from any potential problem. This is especially important in states with no gestational surrogacy regulation.

surrogacy in usa

Main Legal Issues Involved in Surrogacy

Despite the major differences in laws from state to state, there are a few laws that apply in almost every state. These are some examples related to surrogacy in the USA.

1. Commercial Surrogacy Laws

Commercial surrogacy in the USA is an emerging business on its own and most surrogates ask for reimbursement too. In some states, it is completely illegal to offer any kind of compensation to surrogates, while other states put a limit on how much compensation you can give a surrogate mother for pregnancy-related expenses and complications. Failure to comply with these state regulations could result in criminal charges and/or fines

2. Traditional Surrogacy Laws

Gestational surrogacy in the USA is the process in which the surrogate carries a baby that was fertilized using an egg from an egg donor. Prospective parents usually choose this option as the child carries their own DNA. Also, surrogates prefer gestational surrogacy because they don’t have any genetic link with the baby. On the other hand, traditional surrogacy is the process where the surrogate uses her own egg for the implanted embryo is still an option in some states. Most states outlaw traditional surrogacy, so if you are thinking of pursuing a traditional surrogacy journey, first, you need to check if you live in one of those states.

3. The Limitations of Enforcing a Surrogacy Contract

In some cases, the surrogacy contract may be declared null and void. Due to local regulations, in some states, the surrogacy contract cannot be enforced which makes things very difficult for both parts (the surrogate mother and the intended parents) if one of them decides to renege on the contract after the baby has been born. Without the obligation to enforce the agreement, there is a chance that the surrogate will not be compensated according to the initial agreement. Also, it can happen that the surrogate refuses to relinquish all parental rights to the intended parents.

Finding a qualified lawyer willing to support you, in states where surrogacy contracts are not legally binding can be difficult. Some states (where surrogacy contracts cannot be enforced) won’t even allow you to draw one up so creating such a contract will put you at risk of being arrested.

4. Pre-Birth Order Availability

Establishing the legal parentage of a child born through surrogacy is one of the most complicated aspects of surrogacy in the US. State laws generally assume that the child’s legal mother is the woman who gave birth to the child. Therefore, the intended parents must take legal steps to ensure their parental rights long before they began the surrogacy process, to avoid any problem. Some states give you the option of assigning these rights through pre-birth orders. However, in some states this can only be done after the birth and others will require you to go through a standard adoption process post-delivery.

The laws that will apply are the laws of the state where the baby was delivered, rather than the state where it was conceived, or any contracts were signed. Thankfully, you won’t have to research all this information on your own. Your surrogacy lawyer will let you know everything that you need to know about your state’s laws.

surrogacy in the US

Surrogacy-Friendly and Non-Surrogacy-Friendly States

With all these details that need to be considered, the obvious question pops up: Which are the best states to pursue a surrogacy process in The United States? Surrogacy regulation can be challenging, particularly because there are no federal laws regulating the surrogacy process.

The best way to split the states would be according to which ones are surrogacy-friendly and which ones aren’t. The states that are surrogacy-friendly are the more progressive states, these states have laws which recognize and permit surrogacy processes or have a history of ruling favorable in surrogacy cases. The surrogacy friendly states are:

  • California
  • Nevada
  • Oregon
  • Connecticut
  • Maine
  • Delaware
  • New Hampshire
  • Rhode Island

These states usually grant pre-birth orders, no matter the intended parents’ sexual orientation, marital status or genetic relation to the baby. These states also grant the surrogates the right to be compensated for carrying the baby to term. The only issue could be that in these states, there are no clear laws regarding traditional surrogacy and unforeseen problems could arise during the process.

Non-surrogacy friendly states are more difficult to deal with. They are very strict about not compensating surrogate mothers and make it very difficult for the intended parents to ask for full parental rights over the child. Pre-birth agreements are almost impossible to get in such states and even if you manage to get one, there is a good chance that it will not be recognized. Going against these strict laws in such states will get you in a lot of trouble. Non-surrogacy friendly states are:

  • New York
  • Washington
  • District of Columbia
  • Michigan
  • New Jersey

Naturally, there are some states that are better for surrogates or intended parents than others, however, most states are somewhere in the middle.

Remember that in few states, there are statutes prohibiting or allowing surrogacy. In most of them, surrogacy information is based on past court decisions. So, it is really important to be assisted by a reputable family lawyer, in the state where you will pursue surrogacy.

Starting Your Surrogacy Process in the USA

For intended parents or surrogates who decide to continue and manage the surrogacy journey independently in the United States (Indy surrogacy), here you will find some initial steps:

  1. Find a reputable local attorney or lawyer who specializes in surrogacy cases. Hershel will support you with all the legal paperwork.
  2. Find your match: You can find your surrogate mother/egg donor/intended parents through online communities or surrogacy classified ads. 
  3. Find an IVF clinic: After the match, intended parents will choose a reputable fertility clinic that normally will be located close to the surrogate home.
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Written by Sara
Bachelor of Laws (LLB). My passion is to help build families. I approach fertility law with the compassion, empathy and respect it deserves.

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