Where is Surrogacy Still Not Permitted?

Unlike in most other countries, surrogacy in the United States is determined state by state.  Most states permit surrogacy contracts and in the past few years, several states have changed their surrogacy laws to permit the practice.  Washington permits compensated surrogacy as of 2019, New Jersey permits compensated surrogacy as of May 30, 2018 and New York will permit compensated surrogacy as on February 15, 2021.  But a number of states are still not completely surrogacy friendly. 

              What I mean by not “surrogacy friendly” is that compensated surrogacy is not permitted, only compassionate surrogacy.  In these states, surrogacy contracts are void and unenforceable.  This does not mean that you should not have a contract for a compassionate surrogacy arrangement in one of these states.  What it does mean is that there is less certainty for all parties in the event of a dispute because the court will use family law principles and not contract principles to resolve the dispute.

              Michigan is one of the most restrictive states, with a ban that includes the possibility of criminal sanctions for compensated surrogacy.  Louisiana’s 2016 surrogacy law permits surrogacy contracts only for heterosexual couples using their own egg and sperm.  Parties to a surrogacy contract that does not conform to the requirements of this law can be subject to criminal sanctions.

              In Arizona and Indiana, surrogacy contracts are unenforceable. The courts will still entertain petitions for pre-birth orders, but this does not change the enforceability of the surrogacy contract itself.  In the event of a dispute, the parties could not rely on the surrogacy contract and it is unclear how a court might manage the situation.  Surrogacy contracts are also unenforceable in Nebraska, but the genetic father can be named the legal father on the baby’s birth certificate.

              Virginia has a unique surrogacy law.  Compensation is not permitted but partial reimbursement of living expenses is permitted.  The law has very particular procedures with the possibility of severe penalties.

What does that mean for potential surrogates in those states and for intended parents who live in those states?  We always recommend that you seek guidance specific to your personal circumstances (marital status, whether donor gametes are being used) and legal guidance from an attorney practicing in that state if you are considering working with a gestational carrier who lives in a “not surrogacy friendly” state.  For intended parents, you may be able to use the laws of the state where you live to complete the parentage determination process.  We recommend you consult with a local lawyer for further guidance and clarification on your options.

We are hopeful that the list of states that are not surrogate friendly keeps shrinking and that it continues to get easier for all parties participating in surrogacy arrangements to have confidence and comfort in the procedures for establishing the intended parents as the child’s legal parents.

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