The first thing to consider when it comes to pursuing surrogacy in the US is the state laws that could affect your journey
Surrogacy in the US is not an easy process due to the different states’ laws. Before starting your surrogacy journey in the US, learn about specific surrogacy laws that apply to the state where you will be going on your journey.
Surrogacy in the United States is governed by laws that can vary from state to state. Your surrogacy specialist and lawyer should know about this difference in laws and guide you on our journey so that you have a smooth and legal-issue-free process. However, it’s important that you do your own research too.
The US does not have federal laws regarding surrogacy. Therefore, you must be up-to-date with the local laws because there are substantial differences from state to state.
In this article, we will outline some of the key points that apply to surrogacy in states that allow it. However, the best way to find all the information you need regarding surrogacy in the US is to get in contact with a local surrogacy lawyer as soon as you are seriously considering pursuing surrogacy.
Information You Need to Know about Surrogacy in the US
Surrogacy in the United States is not new, but it has recently been in the spotlight due to the improvements in LGBTQ rights, openness to new kinds of families, celebrities turning to surrogacy, and more. Most laws are unable to change as fast as science and social acceptance do, which leaves a lot of grey areas and some procedures that should be regulated but aren’t. The lack of surrogacy-specific laws in some states also means that lawyers must be especially sharp and attentive to the clauses they put in surrogacy agreements between the intended parents and surrogate mothers to protect their clients from any potential problem down the road. This is especially important in states with no gestational surrogacy regulation.
Main Legal Issues with 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.
Commercial Surrogacy Laws
Commercial surrogacy in the US is an emerging business of its own, and most surrogates ask for reimbursement. Some states have made it 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 for pregnancy-related expenses and complications. Failure to comply with these state regulations could result in criminal charges and/or fines.
Traditional Surrogacy Laws
Traditional surrogacy is the process of the surrogate using her own egg for the implanted embryo, and it is still an option in some states. Most states, however, have outlawed traditional surrogacy, so if you are thinking of pursuing a traditional surrogacy journey, you need to check if you live in one of those states.
Gestational Surrogacy Laws
Gestational surrogacy in the US is the process in which the surrogate carries a baby that was fertilized using an egg from an egg donor and that has no genetic link to the surrogate. Prospective parents usually choose this option because the child will carry their DNA. Also, surrogates prefer gestational surrogacy because they don’t have any genetic link with the baby.
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 legally enforced, which makes things very difficult for both parties (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. The surrogate could also refuse to waive all parental rights to the intended parents.
Finding a qualified lawyer willing to support you in the 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.
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 problems. 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 of the child, and others will require you to go through a standard adoption process post-delivery.
The laws that apply will be the laws of the state where the baby is delivered, rather than those of the state where it was conceived, contracts were signed, or the IPs reside.
Thankfully, you won’t have to research all this information on your own. Your surrogacy lawyer will let you know everything you need to know about how the state laws apply.
Surrogacy-Friendly and Non-Surrogacy-Friendly States
With all these details that need to be considered, the obvious question pops up: which states are the best for pursuing a surrogacy process in the United States? Surrogacy regulations can be challenging, particularly because no federal laws regulate the surrogacy process.
The best way to split the states is by 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 that recognize and permit the surrogacy processes or have a history of favorable rulings in surrogacy cases.
The surrogacy friendly states are
- New Hampshire
- Rhode Island
- New Jersey
- Washington, DC
- District of Columbia
These states usually grant pre-birth orders regardless of 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 in these states could be the lack of clear laws regarding traditional surrogacy, and unforeseen problems could arise during the process.
Surrogacy-unfriendly 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 enforce 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.
Surrogacy-unfriendly states are:
- New York
While some states are considered completely surrogacy-friendly and others unfriendly, most states are somewhere in the middle, and their laws may offer varying or uncertain levels of protection for surrogates and intended parents. The legal process may be more complicated than in surrogacy-friendly states, and the results of surrogacy cases may be inconsistent.
Remember that in a few states, statutes prohibit or allow 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; state laws are changing an evolving, and this list can change.
Starting Your Surrogacy Process in the USA
For intended parents or surrogates who decide to follow a surrogacy journey independently in the United States (indie surrogacy), keep in mind these initial steps:
- Find a reputable local attorney who specializes in surrogacy cases.
- Find your match. You can find your surrogate mother, egg donor, or intended parents through online communities or surrogacy classified ads.
- Find an IVF clinic. After the match, intended parents should choose a reputable fertility clinic that normally will be located close to the surrogate’s home.