Surrogacy Laws By State
~an all-inclusive resource for surrogate mothers & intended parents~
|District of Columbia||Massachusetts||North Dakota||Washington|
Crime to place children for adoption.
Only a parent, a parent of a deceased parent, or a relative of the degree of relationship specified in Section 26-10A-28, the Department of Human Resources or a licensed child placing agency, or an agency approved by the Department of Human Resources may place a minor for adoption. No person or entity other than the Department of Human Resources or a licensed child placing agency shall engage in the business of placing minors for adoption. Any person or entity making more than two unrelated placements of minors for adoption within the preceding twelve month period shall be deemed to be in the business of placing minors for adoption. Any other person who places a minor for adoption is guilty, upon the first conviction, of a Class A misdemeanor and upon subsequent convictions is guilty of a Class C felony. This section does not intend to make it unlawful for any person not engaged in the business of placing minors for adoption to give advice and assistance to a natural parent in an adoption. In making adoption arrangements, potential adopting parents and birth parents are entitled to the advice and assistance of legal counsel. Surrogate motherhood is not intended to be covered by this section.
(Acts 1990, No. 90-554, p. 912, §32.)
Payments to parent for placing minor for adoption; maternity expenses; receipt of financial benefits by father.
(a) It shall be a Class A misdemeanor for any person or agency to offer to pay money or anything of value to a parent for the placement for adoption, for the consent to an adoption, or for cooperation in the completion of an adoption of his or her minor. It shall be a Class C felony for any person or agency to pay money or anything of value to a parent for the placement of a child for adoption, for the consent to an adoption, or for cooperation in the completion of an adoption of his or her minor. This section does not make it unlawful to pay the maternity-connected medical or hospital and necessary living expenses of the mother preceding and during pregnancy-related incapacity as an act of charity, as long as the payment is not contingent upon placement of the minor for adoption, consent to the adoption, or cooperation in the completion of the adoption.
(b) It shall be a Class C felony for any person or agency to receive any money or other thing of value for placing, assisting or arranging a minor placement. This section is not intended to prohibit legitimate charges for medical, legal, prenatal or other professional services.
(c) Surrogate motherhood is not intended to be covered by this section.
(Acts 1990, No. 90-554, p. 912, §33.)
The legal status of surrogacy agreements in Alaska is unclear. State law is silent regarding surrogacy and only one reported case of limited importance has touched on the issue.
The only case dealing with surrogacy in the Alaska courts appears to treat surrogacy as a type of adoption. In one 1989 custody case, the plaintiff was a Chickasaw woman who orally agreed to be inseminated by sperm from her sister’s husband to bear a child for them and then signed legal adoption papers upon relinquishing custody. She sought to have the adoption invalidated on the basis that it had not been carried out in accordance with a relevant federal statute (related to Indian governance). The Supreme Court of Alaska rejected her petition, finding that the state adoption law’s one-year statute of limitations had passed.
Citation: In re T.N.F., 781 P.2d 973 (Alaska 1989).
Arkansas law provides for surrogacy contracts, but it is unclear how courts may apply the law to surrogacy situations involving gay, lesbian, bisexual and transgender individuals and couples.
State law generally holds surrogacy contracts valid and enforceable. It also has clear guidelines that specify the legal parents in several different surrogacy scenarios. Specifically, it states (1) if the intended father is the sperm donor, and he is married to the intended mother, then they are both considered the legal parents; (2) if the intended father is the sperm donor and he is unmarried, then he is the sole parent; and (3) if an anonymous donor inseminated the traditional surrogate, then the intended mother is the legal parent. Nevertheless, it is unclear how courts would apply these particular provisions to a gay, lesbian, bisexual or transgender individual or couple, especially in light of the ban on GLBT foster parents and the use of “moral character” laws to deny GLBT parents custody of their children. Case law does not specifically address surrogacy by same-sex couples, but recent cases do show a broad support for surrogacy agreements in Arkansas. In one 1998 case, a heterosexual couple who had a child though a surrogate mother in California went to Arkansas for the required 30 days to legally adopt the child. This action circumvented the mandated six-month residency requirement under California law. The Arkansas Supreme Court ruled that this was in agreement with Arkansas law and was valid. In one case in 1993, a surrogate mother decided that she wished to keep the twins she was carrying for an Arkansas couple. Because she lived in Michigan, where surrogacy is illegal, a court granted her petition to revoke the surrogacy contract. However, the court granted custody to the intended father in Arkansas, allowing her visitation rights. After the surrogate failed to contact the children for one year, the wife of the intended father moved to adopt them in Arkansas. The Arkansas Supreme Court granted the petition to adopt, finding it in the best interest of the child. While the case was decided on neutral custody law, it does demonstrate the degree to which Arkansas courts are willing to assert their jurisdiction to protect surrogacy agreements.
Citations: ARK. CODE ANN. § 9-10-201 (2002); In Re Samant, 333 Ark. 471 (Ark. 1998); In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416 (Ark. 1993).
The legal status of surrogacy agreements in Arizona is unclear. While Arizona law prohibits both traditional (in which the surrogate mother is the biological contributor of the egg) and gestational (in which the surrogate mother is not the biological contributor of the egg) surrogacy agreements, part of that statute has been ruled unconstitutional by an appellate court.
Arizona statute forbids “surrogate parent contracts.” However, should a surrogacy occur, the law states that the surrogate is the legal mother of the child she carries and, if she is married, there is a rebuttable presumption that her husband is the child’s father. The automatic determination of surrogate as legal mother was ruled unconstitutional by an Arizona appeals court. The case law calls into question the validity of the prohibition of surrogacy arrangements. However, because the appellate court opinion may only have struck down one provision of the surrogacy law, and because the Arizona Supreme Court chose not to review the case, the precise scope of the prohibition is unclear. In one case in 1994, a husband and wife entered into a gestational surrogacy agreement. Eggs from the wife were removed, fertilized with the husband’s sperm and implanted in the gestational surrogate, who became pregnant with triplets. During the course of the surrogate’s pregnancy, the wife filed for divorce and sought custody of the unborn children. The husband argued that he was the biological father of the children and, pursuant to statute, the surrogate was the biological mother, leaving the wife no standing to seek custody. The trial court found the section of statutory prohibition on surrogacy agreements which automatically conferred status as legal mother to the surrogate unconstitutional. The Court of Appeals, Division One upheld the trial court’s conclusion, finding that the statute violated the Equal Protection Clause of the Fourteenth Amendment by granting the intended father an opportunity to establish paternity but denying the same chance to the intended mother. Thus, at least in the counties within the jurisdiction of Appellate Division One (Apache, Coconino, La Paz, Maricopa, Mohave, Navajo, Yavapai and Yuma) a purported mother is entitled to rebut the presumption that the surrogate is the legal mother of the child born of the surrogacy arrangement.
Citations: A.R.S. § 25-218 (2001); Soos v. Superior Court ex rel. County of Maricopa, 182 Ariz. 470 (Ct. App. 1994).
California is generally accepting of surrogacy agreements, particularly when the couple seeking surrogacy has contributed some of the genetic material. While the state has no statute directly addressing surrogacy, state courts have used the Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases regarding surrogacy rights (Johnson v. Calvert) was decided in in California.
In 1993's Johnson v. Calvert, the California Supreme Court held that the intended parents in a gestational-surrogacy agreement (an agreement in which the carrying mother had no genetic relationship to the baby) should be recognized as the natural and legal parents. Since the intended mother donated the egg but the surrogate mother gave birth, the court decided that the person who intended to procreate should be considered the natural mother.
A 1998 case, Buzzanca v. Buzzanca, addressed the issue of traditional surrogacy agreements in which the surrogate mother has been artificially inseminated. In this case, a surrogate mother was impregnated using her egg and anonymous sperm. In other words, neither of the intended parents had a genetic link to the child. The court found that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are the lawful parents of the child. Another similar 1998 case, In Re Marriage of Moschetta, dealt with the same issue, except that the intended parents had separated. In that case, the court awarded legal parent rights to the intended father and surrogate mother.
It is unclear what result would come from a same-sex couple attempting to use surrogacy in California to start a family. California seems to rely heavily on the "intent of the parties," but the Buzzanca case only speaks to married couples and Moschetta seems to emphasize the importance of a committed relationship, if not a marriage, between the intended parents. A bill, AB25, signed in 2001 by Democratic Gov. Gray Davis extending domestic partner rights may strengthen same-sex couples' rights in the surrogacy context.
California Family Code § 7540 (2001); Johnson v. Calvert, 5 Cal. 4th 84 (Cal. 1993); Buzzanca v. Buzzanca, 61 Cal. App. 4th 1410 (Cal. Ct. App. 4th 1998); In Re Marriage of Moschetta, 25 Cal. App. 4th 1218 (Cal. Ct. App. 4th 1994).
While Connecticut law is silent with regard to surrogacy agreements, courts have addressed cases involving such agreements and upheld their terms.
No Connecticut appellate court has explicitly indicated that surrogacy contracts are valid, but cases involving such agreements have been adjudicated and parenting arrangements contemplated by those agreements have been upheld. Additionally, a state superior court has upheld a surrogacy agreement.
The Connecticut Supreme Court, in Doe v. Doe, decided a custody dispute in 1998 between a husband and wife over a child born to a surrogate mother through a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg). Based on a state statutory presumption that it is in the best interests of the child to be in the custody of a biological parent, the Court held that even though the wife was not biologically related to the child, her role in raising the child was enough to overcome the presumption. However, the Court explicitly stated that it was not addressing “whether, or to what extent a surrogate contract, by which the surrogate obligates herself to surrender the child to the child’s father and his spouse, is enforceable.” The Connecticut Supreme Court found in the 1998 case of Doe v. Roe, that a trial court had subject matter jurisdiction to approve an adoption agreement that includes a surrogate mother’s consent to termination of parental rights. The surrogate mother had argued that the contract was void because it was against public policy. Nevertheless, the Court explicitly stated that it was not deciding the validity of surrogacy contracts.
In a 2002 case, Vogel v. McBride, a gay male couple had contracted with a surrogate to deliver an embryo developed from an egg fertilized by one of the men’s sperm. The superior court ordered the hospital to place the names of both men on the birth certificate. The court went on to state, “The egg donor agreement and the gestational carrier agreement [were] valid, enforceable, irrevocable and of full legal effect” under the laws of Connecticut.
Citations: Doe v. Doe, 710 A.2d 1297 (Conn. 1998); Doe v. Roe, 717 A.2d 706 (Conn. 1998), Vogel v. McBride, Docket No. FA 02 0471850S (Super. Ct. 2002).
District of Columbia law prohibits surrogacy agreements.
Under D.C. law, both traditional (in which the surrogate mother is the biological contributor of the egg) and gestational (in which the surrogate mother is not the biological contributor of the egg) surrogacy agreements are prohibited and unenforceable. Violation of the statute is punishable by a fine of up to $10,000, as much as one year in jail, or both.
Citations: D.C. CODE §§ 16-401, 402 (2002).
There are no provisions in Colorado law or reported or published cases dealing with the issue of surrogacy.
While Delaware law does not address surrogacy agreements, at least one court has ruled those agreements are against the public policy of the state.
While the Delaware Supreme Court has not ruled on the legality or enforceability of surrogacy contracts, a lower court held that a “contractual agreement to terminate parental rights … is against the public policy of this [s]tate and may not be enforced by the [c]ourt.” One 1988 case did not involve a surrogacy agreement, but rather concerned an adoptive father who sought to terminate all parental rights over his wife’s biological son through a “Property Division Agreement” after a divorce. The court noted that the Delaware Legislature had not “provide[d] for termination of parental rights by contractual agreement of the parents,” and analogized the case to the well-publicized Baby M surrogacy case in New Jersey. It held that “the receipt of money in connection with an adoption is barred by Delaware law,” and termination of parental rights through contractual agreement is forbidden.
Citation: Hawkins v. Frye (a.k.a. Frank v. Hall), 1988 Del. Fam. Ct. LEXIS 31 (Fam. Ct. Sussex County 1988).
Florida law explicitly allows both gestational (in which the surrogate mother is not the biological contributor of the egg) and traditional (in which the surrogate mother is the biological contributor of the egg) surrogacy agreements, but neither is available to unmarried same-sex couples.
The gestational surrogacy statutes impose strict requirements on the contracts, among them limiting involvement to "couple[s that] are legally married and are both 18 years of age or older." The law governing traditional surrogacy arrangements, referred to as preplanned adoption agreements, connects those contracts to state adoption law. Florida law explicitly prohibits “homosexuals” from adopting. This law was upheld by the 11th Circuit Court of Appeals. In one case in 2000, the Florida Court of Appeals noted that the right to enter into surrogate-parenting agreements is reserved for married couples only and is one of the many rights not given to domestic partners. While the ruling concerned only the Broward County Domestic Partnership Act, Florida courts would likely interpret other county domestic partnership laws in a similar way.
Citations: FLA. STAT. §§ 742.11-15 (2002); FLA. STAT. § 63.212 (2002); Lofton v. Kearney, 358 F. 3d 804 (11th Cir. 2004); Lowe v. Broward County, 766 So. 2d 1199 (Fla. Dist. Ct. App. 2000).
There are no provisions in Georgia law or reported or published cases dealing with the issue of surrogacy.
There are no provisions in Hawaii law or reported or published cases dealing with the issue of surrogacy.
Idaho law does not address surrogacy agreements, but case law indicates such contracts may be enforceable in the state.
Detail: Idaho case law indicates that surrogacy contracts may be enforceable in the state. In one 1986 case, the Idaho Supreme Court reviewed custody rights where a biological mother decided to seek custody after she had relinquished the child to the adoptive parents. While maintaining that a custody decision is governed by the “best interests of the child" standard, the Court determined that biology was not the sole factor to be considered. Instead, the Court held that when the biological mother has decided to relinquish custody and there has been no fraud, duress or undue influence in the adoption process, she should be bound to that choice. Particularly significant was the fact that the child had lived for a long time with the adoptive parents and in that time had developed a strong bond with them. While not at issue, the legality of surrogate-parenting agreements could be implicit in the decision. However, the Idaho courts could insist on a rigid adherence of adoption procedures in order to give the agreement validity, and such adherence may be impossible in the context of a same-sex parent surrogacy.
Citation: DeBernardi v. Steve B.D., 723 P.2d 829 (Idaho 1986).
Illinois law provides for gestational surrogacy (where the surrogate mother is not biologically related to the child she is carrying), but does not address traditional surrogacy (in which the surrogate mother is the biological contributor of the egg).
According to Illinois law, a parent and child relationship may be established voluntarily by consent of the parties when: (1) the surrogate mother certifies she is not the biological mother; (2) the husband of the surrogate mother certifies he is not the biological father; (3) the biological mother certifies she donated the egg; (4) the biological father certifies he donated the sperm; and (5) a licensed physician certifies in writing that all of the above is true.
Citation: 750 ILL. COMP. STAT. 45/6 (2002).
Indiana law declares surrogacy contracts unenforceable as against public policy.
Detail: State law declares surrogacy contracts "void and unenforceable.” Specifically, the law lists several broad contractual terms that, if any is included, void a surrogacy agreement. Such forbidden terms include requiring the surrogate to provide a gamete (a mature sexual reproductive cell) to conceive a child, become pregnant herself or waive her parental rights or duties — provisions typically at the heart of any meaningful traditional (in which the surrogate mother is the biological contributor of the egg) or gestational (in which the surrogate mother is not the biological contributor of the egg) surrogacy agreement.
Citation: BURNS IND. CODE ANN. §31-20-1-1 (2002).
Iowa has no laws that specifically address the enforceability of surrogacy contracts. The state law prohibiting the purchase or sale of an individual specifically states that it does not apply to surrogate mother arrangements.
Kansas has no laws regarding surrogacy, but two attorney general opinions indicate that surrogate parenting agreements are unenforceable in the state.
Detail: One opinion of the state attorney general in 1996 addressed whether a surrogate fee would be considered a professional service governed under the provision of state law which addresses fees in adoption proceedings. The statute permits reasonable fees for “legal and other professional services rendered in connection with the placement or adoption.” The opinion stated that surrogate motherhood does not fit into the definition of “professional service.” Though this opinion indicates that a contract providing a fee for bearing a child for another may be unenforceable, it noted that it is permissible to provide reasonable living expenses for the mother during pregnancy. Another opinion in 1982 stated that a surrogate parent contract would be void as against public policy. The attorney general noted that the “commercialization of motherhood” had not been legitimated by the Kansas legislature, and that these contracts would be unenforceable public policy until they receive legislative approval.
Citations: Office of the Attorney General of the State of Kansas, No. 96-73, 1996 Kan. AG LEXIS 73, Sept. 11, 1996; Office of the Attorney General of the State of Kansas, No. 82-150, 1982 Kan. AG LEXIS 137, July 2, 1982.
Louisiana law holds any traditional surrogacy contract (in which the surrogate mother is the biological contributor of the egg) void and unenforceable, but does not address uncompensated agreements or gestational surrogacy (in which the surrogate mother is not the biological contributor of the egg) arrangements.
Louisiana law finds traditional surrogacy agreements "contrary to public policy" and thus “absolutely null.”
Citation: LA. R. S. 9:2713 (2002).
There are no provisions in Maine law or reported or published cases dealing with the issue of surrogacy.
The enforceability of surrogacy contracts in Maryland is unclear. While Maryland does not have a specific law that addresses surrogacy agreements, related laws may hold compensated agreements unenforceable.
Maryland law bans payment for adoption services and prohibits the sale or purchase of minors and punishes this act by a fine and/or jail time. The question as to whether or not these laws apply to surrogacy agreements is widely contested among politicians and legal academics in the state. An opinion of the attorney general indicates disapproval of compensated surrogacy agreements. In an attempt to settle the issue, the Legislature has unsuccessfully tried for the past several years to pass bills regarding surrogacy. One 2000 state attorney general opinion indicates that surrogacy contracts involving the payment of a fee to the birth mother are generally illegal and unenforceable based on existing state law. This suggests that the state would not challenge an uncompensated surrogacy contract. The opinion also states that the payment of a surrogacy fee could not by itself bar approval of an adoption petition and the decision to grant an adoption decision must turn on the best interests of the child.
Citations: MD. CODE ANN., FAM. LAW § 5-327 (2002); MD. CODE ANN., CRIM. LAW § 3-603 (2002); Abby Brandel, Legislating Surrogacy: A Partial Answer to Feminist Criticism, 54 Md. L. Rev. 488 (1995); 85 Opinions of the Attorney General ___ (2000) [Opinion No. 00-035 (December 19, 2000)].
State courts have generally treated surrogacy contracts favorably. Massachusetts treats traditional surrogacy agreements, in which a surrogate mother is artificially inseminated, differently from gestational surrogacy, in which she has no genetic relationship to the child but carries an egg from the intended mother that was fertilized by the intended father. In one case in 2001, the Supreme Judicial Court granted a joint request from a paid gestational mother, a genetic mother, and a genetic father to have the genetic parents listed as the parents on the baby’s birth certificate. While this is further indication of the judiciary’s openness to surrogacy agreements, the Court did not give a ringing endorsement of the enterprise. The Court emphasized that current state law did not address gestational surrogacy agreements, and set forth criteria under which lower courts may review requests for atypical birth-certificate assignations in surrogacy cases. Those criteria are: (a) the plaintiffs are the sole genetic sources; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment, the plaintiffs agree that they have waived any contradictory provisions in the contract. The Court also noted that a factor indicating positive disposition in these cases is that the gestational mother is related to one of the genetic parents. In one 1998 case, a surrogate mother decided in the sixth month of her pregnancy to keep the child. The court found that two elements must exist to validate a surrogacy agreement: (1) the surrogate mother's consent to the surrogacy must last until four days after the birth and (2) the surrogate mother must receive no compensation. Other conditions might be important in deciding the enforceability of a surrogacy agreement, among them (a) that the surrogate mother's husband give his informed consent to the agreement in advance; (b) that the surrogate mother is an adult and has had at least one successful pregnancy; (c) that the surrogate mother, her husband, and the intended parents have been evaluated for the soundness of their judgment and for their capacity to carry out the agreement; (d) the intended mother be incapable of bearing a child without endangering her health; (e) the intended parents be suitable persons to assume custody of the child; and (f) all parties have the advice of counsel. The Court does emphasize that no agreement is per se valid: “the mother and father may not … make a binding best-interests-of-the-child determination by private agreement. Any custody agreement is subject to a judicial determination of custody based on the best interests of the child.” While all of the other conditions listed above need not exist to validate the surrogacy, it is not entirely clear how a judge would apply them to a gay male couple as intended parents. Because the best of interests of the child is the final determination, however, a judge could certainly find such a couple to be the best environment for the child of the surrogacy.
Citations: Culliton v. Beth Israel Deaconess Medical Center, 756 N.E.2d 1133 (Mass. 2001); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).
Michigan has one of the strictest laws prohibiting surrogacy contracts, not only holding them unenforceable, but also imposing fines and jail time on anyone who enters into such a contract (up to five years and $50,000 for some). Case law has upheld the validity of this law. In one case in 1992, several would-be participants in surrogacy arrangements challenged the law, arguing that the state had no compelling interest in prohibiting surrogacy. The court disagreed and found three compelling interests: preventing children from becoming commodities, serving the best interests of children and preventing the exploitation of women. Further clarifying the surrogacy statute, the court noted that any agreement involving conception and relinquishment of parental rights by the surrogate is void. In one 1981 case, individuals involved in compensated surrogacy agreements challenged the constitutionality of Michigan statutes barring the exchange of money or other consideration in connection with adoption and related proceedings. In a very short opinion, the Court concluded that state regulation of adoption in this manner does not infringe individuals’ federal constitutional due process right to procreation.
Citations: MCLS §722.851-861 (2002); Doe v. Kelley, 487 N.W.2d 484 (Mich. Ct. App. 1992); Doe v. Kelley, 307 N.W.2d 438 (Mich. Ct. App. 1981).
There is no provision in Minnesota law on the subject of surrogacy. While the state legislature has considered surrogacy bills, it has yet to pass one.
There are no provisions in Mississippi law or reported or published cases dealing with the issue of surrogacy.
Missouri has no laws directly regarding surrogacy. However, the crime of “trafficking in children” (a felony) includes payment for “delivery or offer of delivery of a child … for purposes of adoption, or for the execution of consent to adopt or waiver of consent to future adoption or consent to termination of parental rights.” A compensated surrogacy agreement might run afoul of this law. For a theory on the legitimacy of gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg) under Missouri law, see Yvonne M. Warlen, Note, The Renting of the Womb: An Analysis of Gestational Surrogacy Contracts Under Missouri Contract Law, 62 UMKC L. Rev. 583 (1994).
Citation: § 568.175 R.S.MO. (2003).
There are no provisions in Montana law or reported or published cases dealing with the issue of surrogacy.
Nebraska law declares surrogacy contracts void and unenforceable, but may allow uncompensated agreements.
Existing state law defines unenforceable surrogate contracts as “a contract by which a woman is compensated for bearing a child of a man who is not her husband,” thus leaving open the possibility of uncompensated surrogacy arrangements. Nebraska law also explicitly imposes “all the rights and obligations imposed by law” upon the biological father party to a surrogacy agreement. Because surrogacy contracts usually involve the biological father, this would leave custody jointly in the hands of the intended father and the gestational mother.
Citation: R.R.S. NEB. § 25-21,200 (2002).
Nevada law prevents unmarried people from entering surrogacy agreements.
Existing state law restricts the adopting parties of a surrogacy agreement to people “whose marriage is valid” under Nevada law. The statute defines “intended parents” as “a man and a woman, married to each other.” Given this specific language, it is unlikely that a GLBT individual or couple would be permitted to enter into an enforceable surrogacy agreement.
Citation: NEV. REV. STAT. ANN. § 126.045 (2001).
According to existing state law, “‘Intended parents,’ including an ‘intended father’ and ‘intended mother,’ means people who are married to each other, and who enter a surrogacy contract with a surrogate by which they are to become the parents of the resulting child.” Given this specific language, it is unlikely that a homosexual individual or couple would be permitted to enter into an enforceable surrogacy agreement.
Citation: R.S.A. NH 168-B:1 (2002).
New Jersey permits only uncompensated gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg).
Surrogacy cases in New Jersey have created a fairly well-defined common law rule that prohibits traditional surrogacy arrangements (in which the surrogate mother is the biological contributor of the egg) and allows only uncompensated gestational surrogacy arrangements. One case in 2000 addressed the rights of intended parents in a gestational surrogacy arrangement in which the surrogate mother gave birth to a child with no genetic connection to her. The intended mother's sister agreed to carry the baby, and the intended parents sought to compel the state attorney general to put their names on the birth certificate. The court found that the agreement was enforceable because it did not involve compensation and the surrogate was not subject to a binding agreement before birth. In gestational surrogacy arrangements, the intended parents must wait 72 hours after the birth before the surrogate can surrender custody. But under New Jersey law, the birth certificate does not have to be filed for five days. Thus, a two-day window exists during which intended parents can be placed on the birth certificate. In perhaps the most famous surrogacy case in the nation, In Re Baby M, the New Jersey Supreme Court in 1988 invalidated a traditional surrogacy agreement, which provided a $10,000 fee to the surrogate mother. The Court barred the use of money in an adoption placement and further held that no one could contractually abandon their parental rights.
Citations: A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. 2000); In Re Baby M, 537 A.2d 1227 (N.J. 1988
New Mexico law appears to allow surrogacy agreements, but only if uncompensated.
New Mexico law forbids “payment to a woman for conceiving and carrying a child” but allows payment for medical and other similar expenses incurred “by a mother or the adoptee.”
Citation: N.M. STAT. ANN. § 32A-5-34 (2003).
New York law holds surrogacy agreements void and unenforceable.
Under New York law, surrogacy contracts are contrary to public policy. Case law also reflects that position. However, at least one court has recognized the rights of intended parents in an assisted reproduction situation absent a contract. In one 1994 divorce proceeding, a husband sought sole custody of the two children of the marriage on the basis that his wife was their gestational, but not genetic, mother. The wife had undergone an in vitro fertilization procedure in which she was impregnated with an anonymous donor egg fertilized with her husband’s sperm. The Court followed the analysis of the California Supreme Court in a similar case, Johnson v. Calvert (see California entry for summary). Accordingly, the Court found the gestational mother to be the legal mother of the children, based on the intent of the parties regarding parentage. The Court did not mention or consider the statutory ban on surrogacy in this case. In one case in 1990, decided before the statutory ban on surrogacy agreements was passed, a married couple had entered into an extensive contract with a surrogate, including a $10,000 “surrogate fee.” The Court found the surrogate’s commitment to relinquish the child she carried could not be truly voluntary because of the financial inducement. While the Court went on to find that its conclusion might be altered by a sworn statement by the surrogate that the child’s best interests lie with the contracting couple, this option is probably foreclosed by the subsequent passage of the law voiding surrogacy agreements.
Citations: NY CLS Dom Rel § 122 (2001); McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 1994); In the Matter of the Adoption of Paul, 550 N.Y.S.2d 815 (Fam. Ct., Kings County 1990).
North Carolina has no laws directly regarding surrogacy. However, other laws appear to allow surrogacy arrangements that do not include payment beyond the surrogate’s medical and related expenses.
State adoption law generally forbids compensation for consent to adopt or relinquishment of parental rights. However, the law provides for exceptions to this rule, among them payment for a mother’s medical and related expenses during pregnancy, and allows that payment to be contingent on the relinquishment for adoption.
Citation: N.C. GEN. STAT. §§ 48-10-102, 103 (2002).
According to existing state law, any surrogate agreement is void. The surrogate mother is deemed the legal mother of any child born as a result of a surrogacy, and her husband, if there is one, is considered the legal father.
Citation: N.D. CENT. CODE § 14-18-05 (2002).
Ohio law does not address the validity of surrogacy agreements, but their mention in other statutes indicates some degree of legislative acceptance.
Ohio laws regarding artificial insemination “do not deal … with surrogate motherhood.” Ohio case law on surrogacy is unsettled. Ohio courts have addressed surrogacy arrangements several times, but the state Supreme Court has never definitively ruled whether surrogate-parenting contracts are enforceable. One 2001 case involved a man who entered into an oral agreement with his sister to carry a child for him and his same-sex partner. The sister was inseminated by an anonymous donor, but during the pregnancy began to have doubts about the arrangement. The court determined that the surrogate was the legal mother of the child for the following reasons: the child’s lack of biological connection to the male couple, the lack of a written agreement and lack of certification of the verbal agreement by a family agency or court, and the fact that biological parents may be denied custody only in the case of abandonment, valid contractual relinquishment of custody, or total inability to provide care or support. The court ruled explicitly that even if a determination is made that a biological parent has forfeited his or her rights or that his or her custody would be detrimental to the child, the burden is still on the party seeking parental rights to prove, by a preponderance of the evidence, that granting custody to the biological parent would still be unsuitable. The court found it possible “for a parent to contractually relinquish their rights to custody and still reacquire custody based on the non-parent's inability to show parental unsuitability." Nowhere in the decision did the court discuss the adoptive parents' sexual orientation as an issue in the decision. In fact, the judge's opinion outlines how the brother's partner might have gone about adopting the child had the surrogacy arrangement been legitimate. Thus, it seems the potential for same-sex couples in Ohio to use surrogacy arrangements exists, provided the contracts are entered into legally. Contributing some of the genetic material would also probably strengthen a case brought for custody for the intended parents. In another case, the Ohio Court of Appeals held in 1999 that genetic testing of a child conceived through a traditional surrogacy arrangement (in which the surrogate mother is the biological contributor of the egg) was required to identify the child’s father. Two couples had created a written agreement under which the wife of one couple was to be inseminated by the husband of the other couple and relinquish custody of the child to the biological father and his wife after the birth. The surrogate mother reneged on the agreement, and invoked O.R.C. Ann. 3111.37, a statute establishing that a child born from artificial insemination to a married woman is the natural child of her husband. The court held that the statute contemplated a procedure performed by a physician utilizing an anonymous sperm donor and did not apply in this case. Nevertheless, the court found genetic testing to determine paternity was in the best interest of the child in this case and referred the determination of parentage (after such testing) back to the lower court. In 1994, a lower court held that the intended parents in a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg) were the natural and legal parents of the resulting child. However, the court noted that “as a matter of public policy, the state will not enforce or encourage private agreements or contracts to give up parental rights.” Because the decision came from a trial court, the language is not binding on other courts and may relate only to compensated agreements. After a complicated custody battle, in 1992 the Court of Appeals eventually denied custody to the intended mother in a traditional surrogacy agreement because she had no biological tie to the child, nor any recognizable legal tie because the surrogacy contract was an oral agreement and thus unenforceable. The court did not discuss how it would have ruled on a written contract, but concluded that the legality of surrogacy agreements in Ohio is "unsettled and open to considerable scrutiny."
Citations: O.R.C. ANN. § 3111.89 (2002); Decker v. Decker, 2001 Ohio App. LEXIS 4389 (Ohio Ct. App., 3d Dist. 2001); Turchyn v. Cornelius, 1999 Ohio App. LEXIS 4129 (Ohio Ct. App., 7th Dist. 1999); Belsito v. Clark, 644 N.E.2d 760 (Ct. Com. Pl., Summit County 1994); Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App., 10th Dist. 1992).
Oklahoma has no laws directly addressing surrogacy, but an attorney general opinion indicated that surrogacy agreements run afoul of state law against “trafficking in children.” However, a surrogate parenting agreement that only provides compensation for medical and other basic expenses may be permitted.
The state Attorney General concluded that surrogate parenting contracts that provide compensation to affect the adoption of a child violates state law prohibiting trafficking in children, which includes the “acceptance, offer or payment of compensation in connection with the transfer of legal or physical custody or adoption of a minor child.” State adoption law permits the payment of reasonable medical expenses for the birth mother and minor to be adopted, and it is possible that such reimbursement would be acceptable in the surrogacy context without violating the child trafficking law.
Citations: 21 OKL. ST. § 866 (2003); Office of the Attorney General of the State of Oklahoma, No. 83-182, Sept. 29, 1983; 10 OKL. ST. § 7505-3.2 (2003).
Oregon law appears to allow only uncompensated surrogacy arrangements.
The statute prohibiting “buying or selling a person” has an explicit exemption for “fees for services in an adoption pursuant to a surrogacy agreement.” This appears to codify the conclusion of a 1989 opinion issued by the attorney general, which indicated that the state may invalidate any agreement in which money is exchanged for the right to adopt a child, particularly when the birth mother contests it. The case law confirms that if a surrogate mother is compensated for her consent to adoption under a surrogacy contract, the contract is unenforceable. However, it appears that a surrogacy arrangement in which the compensated surrogate mother would have carried the baby with or without pay would be upheld. In one case in 1994, the Oregon Court of Appeals upheld an uncontested surrogacy arrangement, refusing to invalidate the agreement even though payment to the surrogate mother exceeded her pregnancy-related expenses. The Court emphasized that the facts indicated the surrogate would have entered into the agreement even without compensation and that she was not seeking to withdraw her consent for the adoption of the child. However, this case was decided before the statutory provision discussed above was passed by the legislature.
Citations: Office of the Attorney General of the State of Oregon, No. 8202, 46 Op. Atty. Gen. Ore. 221 (April 19, 1989); In the Matter of the Adoption of Baby A and Baby B, 877 P.2d 107 (Or. Ct. App. 1994).
The case law regarding surrogacy is ambiguous in Pennsylvania. It appears that a compensated surrogacy agreement would be held unenforceable. However, an arrangement established through a legally recognized agency appears to be legal. The validity of informal arrangements is less certain.
One case in 1997 did not involve a surrogacy contract, but rather a paternity dispute (apparently between a current husband and an extramarital male sexual partner) and the allocation of parental support duties. The court observed that the husband attempted to make a deal with the other man to obtain property in exchange for continued support of the child. In condemning this action as “odious and demeaning to the nature of child care and responsibility,” the court referenced a New Jersey case, In Re Baby M., which held compensated surrogacy contracts invalid under that state’s laws. The court concluded, “[w]e do not tolerate purchasing children for adoption and the bargaining over parenting rights and duties … in exchange for financial consideration is reprehensible. Any agreement reached thereby would have been unenforceable.” Another 1997 case, Huddleston v. Infertility Center of America, involved a negligence action brought against a fertility clinic and did not directly relate to the validity of surrogacy arrangements. However, implicit in the decision was that state law permitted surrogacy arrangements through this particular agency.
Citations: Ruth F. v. Robert B., Jr., 690 A.2d 1171 (Pa. Super. Ct. 1997); Huddleston v. Infertility Center of America, 700 A.2d 453 (Pa. Super. Ct. 1997).
Rhode Island has no laws regarding surrogacy directly, but there appears to be some legislative approval for at least some forms of surrogacy.The state law prohibition on cloning has an explicit exception for the assisted reproductive technologies used in gestational surrogacy (in which the surrogate mother is not the biological contributor of the egg).
Citation: R.I. GEN. LAWS § 23-16.4-2 (2002).
There are no existing provisions in South Carolina law regarding surrogacy. The limited case law indicates an acceptance of surrogacy contracts, although it only addresses those involving married, heterosexual couples.
One 2003 case before a federal district court did not deal directly with the validity of a surrogacy agreement, but rather the status of the child of that agreement with regard to an insurance policy. The husband of the surrogate sought coverage for the child of the surrogacy under his insurance policy’s coverage of a “natural child.” The court gave great deference to the terms of the surrogacy contract and the stipulations by the parties therein regarding the legal status of the adults and child involved. (The court found that the child of the surrogacy was not the “natural child” of the surrogate’s husband, based largely on statements to that effect in the surrogacy contract.) While the court’s holding does not go to the legitimacy of surrogacy arrangements in South Carolina directly, the court clearly assumed that such an arrangement was not contrary to state law when it showed such deference to its terms.
Citation: Mid-South Insurance Co. v. Doe, 274 F.Supp.2d 757 (D.S.C. 2003).
There are no provisions in South Dakota law or reported or published cases dealing with the issue of surrogacy.
Tennessee law appears to give surrogacy contracts legal consequence, but claims neither to approve nor forbid them. However, state law defines a “surrogate birth” to occur only when the surrogate is gestating a fetus for a married couple.
State law defines “surrogate birth” as either an arrangement by which a surrogate agrees to carry the embryo of two married people or by which she agrees to carry a child to be parented by a married couple. The law also indicates that if such an agreement is in place, there is no need for a formal adoption proceeding. The state court system also seems disposed to granting force to reproductive agreements. In one 1992 case, the Tennessee Supreme Court held that “in disputes as to embryos, any prior agreement would be honored.” This decision did not specifically address surrogacy, but the Court’s willingness to adjudicate a case involving embryos intended for surrogacy suggests a judiciary approval of such contracts in Tennessee.
Citations: TENN. CODE ANN. § 36-1-102 (2002); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
Texas law explicitly allows but heavily regulates surrogacy agreements, and it appears to exclude same-sex couples.
Among other constraints, existing state law requires intended parents to be married to each other. A court must validate a surrogacy contract for parental rights to attach to the intended parents upon birth of the child; a contract not validated by the court is unenforceable.
Citations: TEX. FAM. CODE § 160.754; TEX. FAM. CODE § 160.762. Note: These provisions of the Family Code were added by House Bill 729 (LEXSEE 2003 Tex. HB 729) and have not yet been codified.
Surrogacy agreements are enforceable under Utah law in certain circumstances.
The Utah Uniform Parentage Act permits written gestational agreements providing that the prospective gestational mother agrees to pregnancy by means of assisted reproduction, that she gives up all parental rights and duties as the parent of the child conceived through assisted reproduction, and that the intended parents (who must be married) become the child’s parents.
Citation: UTAH CODE ANN. Title 78 Chapter 45g-801 (2005)
Surrogacy agreements are likely available to all individuals and couples in Vermont, but this is not entirely clear.
There is no case law dealing directly with surrogacy, but at least one case has indicated an acceptance of such agreements in Vermont. In the groundbreaking 1999 case that led to the creation of civil unions in Vermont, the state itself argued that restricting marriage to different-sex couples would serve the important goal of minimizing complications in surrogacy agreements, suggesting a basic acceptance of such agreements. The Court’s holding granting the state-level benefits and responsibilities of marriage to same-sex couples likely includes that acceptance of surrogacy.
Citation: Baker v. State, 170 Vt. 194 (Sup. Ct. Vt. 1999).
Virginia law explicitly approves of uncompensated surrogacy, but it appears to exclude same-sex couples from participation in these arrangements.
Virginia statutes impose numerous restrictions on surrogacy contracts, including limiting formation of such agreements to a surrogate and "intended parents" defined as "a man and a woman, married to each other."
Citation: VA. CODE ANN. §§ 20-156 (2002).
Washington allows uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses.
State law specifies that compensated surrogacy arrangements are void and unenforceable as against public policy, and is punishable as a gross misdemeanor. A custody dispute between the surrogate mother and the intended parents is resolved according to a multi-pronged balancing test codified in Washington law, largely based upon the child’s relationship with each parent. A parent-child relationship can be established by a valid surrogate parentage contract or an affidavit and physician’s certificate wherein an egg donor or gestational surrogate sets forth her intent to be the legal parent of the child. A 1989 opinion from the attorney general confirmed this assessment of state law, and also indicated that a surrogate parenting agreement is not enforceable if the surrogate withdraws her consent to relinquish her child before court approval of the consent.
Citations: RCW §§ 26.26.210-.260 (2002); RCW § 26.26.101 (2002). 1989 WL 428954 (Wash. A.G.).
West Virginia has no laws directly addressing the legality of surrogacy contracts.
State law prohibiting the purchase or sale of a child specifically mentions that “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother” are not prohibited by the statute, suggesting that surrogacy arrangements may be enforceable.
Citation: W. VA. CODE § 48-22-803(e)(3) (2002).
Wisconsin law does not directly address the legality of surrogacy contracts.
In the statute pertaining to the collection of vital statistics, the law states that the surrogate mother’s name is to be added to the birth certificate until “a court determines parental rights,” at which time a new birth certificate with names of the intended parents may be issued, but the statute does not lay out the factors a court should consider in making that decision.
Citation: WIS. STAT. § 69.14(h) (2001).
There are no provisions in Wyoming law or reported or published cases dealing with the issue of surrogacy.
Please remember that you are dealing with a very delicate legal situation. Many states do not recognize surrogacy and other states completely prohibit surrogacy. It is very important to consult an attorney to be sure that you are following current, up-to-date laws in your state.