Different state approaches to surrogacy arrangements – statutes versus case law?

Most countries have a single policy on surrogacy (and most countries prohibit surrogacy).  In the United States, we allow each state to make their own decision on whether and how to permit surrogacy arrangements. 

Surrogacy contracts can either be permitted by statute or case law.  While statute may seem like the clearest way to define surrogacy contracts, many states permit surrogacy by case law with a well-developed body of law providing certainty to intended parents (i.e. Oregon and Pennsylvania).  Other states have passed laws that clearly define under what circumstances a surrogacy contract will be enforceable, whether a pre or post birth order will be issued and under what circumstances intended parents can be placed directly on the birth certificate (i.e. New Jersey and Nevada).  Neither method is “better” or “worse.”  As an intended parent, before you move forward with a gestational carrier candidate, you want to be clear on what the parentage determination process is anticipated to be and ensure that you are comfortable with that process.

For instance, some states permit intended parents to be placed on the birth certificate only if they are genetically related to the baby, others will allow both intended parents on the birth certificate if one of them is genetically related to the baby and they are legally married and others allow both intended parents on the birth certificate based upon their intention to parent regardless of their genetic relationship to the child or marital status. 

Schedule a free, 30-minute consultation to learn more about our services and how we can help you plan for and start your surrogacy journey!  Contact us today at 201-390-7400 or email stephanie@surrogacyjourneyconsulting.com.