What You Need to Know About Surrogacy Laws By State
Some states are more friendly towards surrogacy than others. Here’s an overview of surrogacy laws by state.
Due to a lack of federal legislation regarding surrogacy in the United States, a person’s ability to have a child via surrogacy varies widely state by state. In some states, a couples’ sexual orientation may determine whether or not they are able to have a child via surrogacy, as well as their marital status. The most surrogacy-friendly states can be found on the west coast and in the northeast, while the least surrogacy-friendly states are Louisiana, Michigan, and Nebraska.
Surrogacy is a legal agreement in which a female bears a child for a person or couple that will become the child’s legal parent(s). Traditional surrogacy is a type of surrogacy in which the surrogate mother’s eggs are used, which means that the surrogate mother is the biological parent of the child. Gestational surrogacy is when the eggs of the intended mother or a donor are used, rather than the surrogate mother. As such, the surrogate has no biological link to the child. Gestational surrogacy is far more common than traditional surrogacy in the modern-day.
There is no federal surrogacy legislation in the U.S., so whether or not a person or couple is able to have a child via surrogacy, as well as details regarding the legal agreement, depends on the state in which they live. Furthermore, some states do not have laws regarding surrogacy, and so a state’s surrogacy friendliness depends on analyzing previous court decisions in that state and in particular counties. Therefore, because this article will only provide a brief overview of surrogacy laws by state, people in ambiguous states who are curious about pursuing surrogacy should contact a local attorney or surrogacy organization for assistance.
In addition, while surrogacy may be legally permitted in many states, some states have restrictions on who is allowed to have a child via surrogacy. For example, in Louisiana, the intended parents must be in a heterosexual marriage.
As time passes and surrogacy becomes more common and accepted, more states have passed surrogacy-friendly legislation. Here are the states where surrogacy is permitted by legislation, not restricted based on marital status or sexual orientation, and where pre-birth parentage orders can be granted:
- New Hampshire
- Washington D.C.
Therefore, if living in one of these states, people who desire to have a child via surrogacy will generally be able to do so. However, these statutes generally cover gestational surrogacy, so those who desire traditional surrogacy may face additional obstacles.
A few states are notably hostile towards surrogacy, either explicitly or by imposing onerous restrictions. Here are those unfriendly states:
In these, it is possible for surrogacy to legally occur, but only in certain situations. Compensated surrogacy is illegal, which means that surrogacy can only occur if the surrogate mother does it for free. The additional restrictions in Louisiana are particularly onerous. In Nebraska, only the biological father can be named legal parent in a surrogacy case. Therefore, if living in one of these states, surrogacy will either be impossible or extremely difficult to undertake in a desirable manner.
Many states are neither extremely friendly nor extremely unfriendly towards surrogacy. In some, there is no legislation regarding surrogacy at all, and so the state’s acceptance of surrogacy depends on individual court decisions. In others, there is legislation, but it does not provide as much protection to intended parents as surrogacy-friendly states. Here are the states that take more ambiguous stands regarding surrogacy:
- New Mexico
- North Dakota
- South Dakota
- South Carolina
- North Carolina
- West Virginia
Therefore, if living in one of these states, people who wish to pursue surrogacy should seek more information to ensure that they will have the desired outcome.
In other states, surrogacy is allowed, but there are additional restrictions. For example, it may be impossible to obtain a pre-birth parentage order. In some of these states, compensated surrogacy is illegal. Here are the states that are less friendly towards surrogacy, but not completely unfriendly:
- New York
- Rhode Island
Therefore, if living in one of these states, people who wish to pursue surrogacy should contact a local attorney or surrogacy agency to determine whether or not they should move forward as well as what options they have.
FAQs About Surrogacy Laws By State
Is the United States friendly towards surrogacy?
In general, yes. While there are some states that essentially prohibit surrogacy and others that place restrictions on surrogacy, most states are either completely or mostly friendly towards surrogacy. Gestational surrogacy is more accepted by states than traditional surrogacy.
Are there federal laws governing surrogacy?
No. Surrogacy is governed by family law, which means that it is covered only by state law.
Do all states have laws regarding surrogacy?
No, but states are passing laws as the years go by. In states without surrogacy laws, their friendliness towards surrogacy is determined by court decisions.
What are the least surrogacy-friendly states?
The least surrogacy-friendly states are Louisiana, Michigan, and Nebraska.
What are the most surrogacy-friendly states?
The most surrogacy-friendly states, in general, are those on the west coast and those in the northeast.
If you want to pursue surrogacy but are unsure about whether or not your state will restrict you, contact us. Get your free consultation with one of our experienced family law attorneys to learn more about California surrogacy laws!