Surrogacy Laws in the U.S.: A State-By-State Guide

Surrogacy has transformed the landscape of modern parenthood, providing families with countless opportunities to grow. Yet legal frameworks on surrogacy in the United States remain far from uniform. Some states champion surrogacy with well-defined protections and seamless legal processes, while others impose strict limitations or outright bans, leaving intended parents and surrogates to navigate a maze of legal ambiguity. 

These variations in surrogacy laws influence a wide spectrum of issues, including contract enforceability and the legal recognition of intended parents, making it essential to understand how surrogacy laws vary across the country.

Types of Surrogacy in the U.S.

In the U.S. surrogacy is broadly divided into traditional surrogacy and gestational surrogacy. Although both involve a surrogate carrying a baby for the intended parents, the primary distinction is whether the surrogate has a biological connection to the baby. This difference plays a crucial role in how surrogacy is regulated, as state laws may vary depending on the type of surrogacy. 

It is important to understand the two types of surrogacy, as each has legal and practical implications. They include:

• Traditional Surrogacy: This type of surrogacy, also known as "genetic surrogacy," occurs when the surrogate doubles as the carrier and the biological mother of the child because her egg is fertilized with sperm from the intended father or a donor, usually via intrauterine insemination (IUI). Due to the surrogate's biological connection to the child, legal disputes over parental rights and the enforceability of surrogacy agreements may arise. A landmark example is the "Baby M" case, where the surrogate mother sought to retain custody after birth. The court invalidated the surrogacy contract, emphasizing the surrogate's parental rights due to her biological connection, and awarded her visitation rights while granting custody to the intended parents. 
• Gestational Surrogacy:This is when an embryo is formed through in vitro fertilization (IVF) using the egg of the intended mother, or an egg donor, and sperm from the intended father, or a sperm donor. The embryo is subsequently placed into the surrogate’s uterus, allowing her to carry the pregnancy to term with no biological connection to the child. However, legal issues regarding parental rights and the recognition of intended parents may still arise, as state courts may be unwilling to uphold surrogacy contracts unless intended parents present supporting court orders or surrogacy contracts.

State-By-State Breakdown of Surrogacy Laws

Surrogacy laws in the United States are anything but similar, as rules vary depending on where you are. Understanding these laws is essential if you are considering surrogacy, as they determine contract enforceability, parental rights, and the overall legal security of the arrangement. Below is a state-by-state breakdown:

California

California's surrogacy policies are underpinned by Section 7960 of the California Family Code, which permits both gestational and traditional surrogacy. In addition, intended parents,  regardless of marital status, sexual orientation, or genetic connection, can establish legal parentage before birth to ensure that their names are placed directly on the child’s birth certificate at birth. This prevents the need for post-birth adoption proceedings and grants them immediate legal rights and responsibilities.

Furthermore, to proceed with surrogacy in California, each party must have independent legal representation, and a formal surrogacy contract must be in place before the commencement of any medical procedures.  Courts consistently uphold these agreements, as seen in Johnson v. Calvert (1993), which ruled that a surrogate has no parental rights when a legally binding contract exists.

With its strong legal framework, combined with its top-tier fertility clinics, surrogacy agencies, and reproductive law specialists, California remains a leading destination for surrogacy.

New York

For many years, New York was one of the few states that banned surrogate parenting agreements, rendering them unenforceable and subjecting participants to fines. However, everything changed with the enactment of the Child-Parent Security Act (CPSA), which took effect on February 15, 2021, and legalized gestational surrogacy.

Surrogacy contracts are now legally enforceable under the CPSA, provided they meet specific requirements. The surrogate must be at least 21 years old, undergo medical and mental health evaluations, and have independent legal representation separate from the intended parents. Additionally, intended parents can obtain a pre-birth order.

It is important to note that CPSA protections are applicable only when the gestational surrogate lives in or gives birth to the child in New York. Intended parents, however, can live anywhere, as long as at least one parent is a U.S. citizen or has been a lawful permanent resident of New York for a minimum of six months.

Texas

In Texas, surrogacy is regulated by Chapter 160, Subchapter I, of the Texas Family Code, which permits gestational surrogacy. Texas surrogacy law favors married intended parents, requiring that a gestational agreement be validated by a court to be legally enforceable. Upon approval, this agreement grants the intended parents immediate parental rights.

However, the law does not specifically address traditional surrogacy. Therefore, traditional surrogacy is often treated similarly to adoption procedures, in that the surrogate is legally recognized as the biological mother at the time of birth and must wait at least 48 hours before she can voluntarily give up her parental rights by Section 161.103(a)(1) of the Texas Family Code. 

Furthermore, surrogates may receive compensation not only for medical and pregnancy-related expenses but also for their time, the medical risks involved, and the physical and emotional demands of pregnancy. 

For a surrogacy contract to be legally valid, several key requirements must be met. If the intended mother is donating her egg, she must provide medical evidence showing that she is unable to safely carry a pregnancy or that doing so would pose a health risk. Additionally, a court must validate the agreement, ensuring it meets all legal standards. 

Illinois

Illinois is another state that is widely regarded as one of the most surrogacy-friendly states in the country. Governed by the Illinois Gestational Surrogacy Act (750 ILCS 47), the state ensures that surrogacy contracts are legally enforceable.

In Illinois, intended parents can gain legal recognition without the requirement of a post-birth adoption. Under state law, their names are included directly on the child's birth certificate, as long as specific legal conditions are satisfied. At least one intended parent must have a genetic connection to the child. Additionally, all parties, including the surrogate and, if applicable, her spouse, must sign certified legal statements confirming their agreement and waiving any parental claims.

However, traditional surrogacy operates in a legal limbo. In such cases, the surrogate is legally recognized as the child’s biological mother, meaning that the intended parents need to seek a formal adoption or court order to establish legal parentage.

Florida

Florida has a well-defined legal framework for surrogacy, particularly for gestational surrogacy arrangements. Governed by Florida Statute §742.15, the state recognizes and enforces gestational surrogacy contracts, provided that certain legal requirements are met. Both the commissioning couple and the surrogate must be at least 18 years old, and the commissioning couple must be legally married. Additionally, a physician must certify that the intended mother is unable to safely carry a pregnancy to term or that doing so would pose a health risk to her or the fetus.

Within three days of birth, the intended parents must petition the court for legal parentage. Once approved, the Florida Department of Vital Statistics will issue a birth certificate naming them as the child’s legal parents, ensuring their rights are promptly recognized while the surrogate relinquishes any claims, provided all legal conditions are met.

In addition, while Florida law explicitly permits gestational surrogacy for married couples, the legal framework for unmarried or single intended parents is less clear. However, surrogacy remains accessible to them through court orders, as long as at least one intended parent has a genetic connection to the child. Traditional surrogacy is governed by laws akin to those of adoption, which means that the surrogate retains parental rights until they are legally terminated. This adds legal complexity and makes traditional surrogacy far less common than gestational surrogacy in Florida.

Michigan

Until March 2024, Michigan's surrogacy law was highly restrictive and uncertain, criminalized surrogacy agreements, and deterred many from pursuing surrogacy within the state. A pivotal shift occurred in March 2024 when the Michigan Legislature passed the Assisted Reproduction and Surrogacy Parentage Act, repealing the criminal and civil bans on surrogacy and establishing laws to regulate the process and protect all involved parties. 

This legislative change has created new opportunities for individuals and couples in Michigan who wish to expand their families through surrogacy. By removing previous legal barriers, Michigan has made surrogacy a more accessible and secure option for those looking to build their families, reflecting a significant shift in the state's approach to reproductive rights and family planning.

Other States With Notable Surrogacy Laws

Surrogacy laws vary significantly across the U.S., with some states providing strong legal protections while others impose strict limitations. States like Washington, Oregon, and Nevada have progressive surrogacy laws that allow both compensated and altruistic surrogacy, while states like Arizona and Louisiana have more restrictive or ambiguous surrogacy laws. In Louisiana, only altruistic gestational surrogacy is permitted for married heterosexual couples, and traditional surrogacy contracts are deemed null and void.

The Role of Contracts in Surrogacy Agreements

Surrogacy contracts are essential for establishing a clear and legally binding agreement between the surrogate and the intended parents. In many states, these contracts define the rights, responsibilities, and expectations of all parties involved, minimizing the risk of legal disputes. 

Without a legally enforceable contract, both surrogates and intended parents may face significant legal challenges. For example, a surrogate might have difficulty securing proper medical care or compensation, while intended parents may struggle to establish legal parentage.

Surrogacy Contract Requirements

Generally, a surrogacy contract usually includes the following elements:

• The surrogate’s compensation (if applicable) and reimbursement for medical costs, pregnancy-related expenses, and legal fees.
• The medical process includes embryo transfer, prenatal care, and delivery. The agreement may also outline who has decision-making authority over medical treatments.
• The legal parentage, whether pre-birth parentage orders or post-birth legal procedures.
• The surrogate’s rights and responsibilities.
• The procedure of dispute resolution in case of disagreements or breaches of contract.
• Some states have unique legal requirements, such as mandatory psychological evaluations for the surrogate, specific waiting periods before parental rights transfer, or restrictions on compensated surrogacy.

Legal Parentage and Parental Rights

Establishing legal parentage is an essential part of the surrogacy process, ensuring that intended parents have full legal rights over the child. The process varies by state; some jurisdictions permit intended parents to obtain pre-birth orders, whereas others necessitate post-birth adoption. Courts play a central role in establishing parentage through pre-birth orders or post-birth adoption, depending on the surrogacy laws of the state.

Pre-Birth Orders

In many surrogacy-friendly states, courts allow intended parents to obtain pre-birth orders, officially acknowledging them as the child's parents before birth. These orders ensure that the intended parents' names are directly included on the birth certificate, granting them immediate rights and responsibilities upon the child’s birth. 

Post-Birth Adoption

In states with less developed or restrictive surrogacy laws, intended parents may need to seek post-birth adoption or parentage orders to secure legal rights. For example, in states where traditional surrogacy is permitted, the surrogate may be legally recognized as the child's parent at birth. Thus, the intended parents must go through an adoption process to establish their legal rights.

Ethical Considerations and Legal Challenges

Surrogacy presents both ethical dilemmas and legal complexities, especially in states with restrictive laws. A major ethical concern is the possible exploitation of surrogates, especially those in vulnerable financial situations. Without strict regulations, surrogacy may become a transactional arrangement that neglects the autonomy and well-being of the surrogate. Additionally, disputes over medical decisions such as whether a surrogate can be compelled to terminate or continue a pregnancy highlight the ongoing tension between a surrogate’s bodily autonomy and the intended parents’ rights. 

Also, inconsistent state laws pose challenges on the legal front when it comes to establishing parentage and enforcing surrogacy agreements. These differences can result in jurisdictional conflicts, particularly when intended parents from restrictive states enter agreements in more surrogacy-friendly states. International surrogacy adds another layer of legal uncertainty, as some countries do not recognize children born through surrogacy as citizens.

Surrogacy laws in the United States vary widely, making legal counsel and careful planning essential for intended parents and surrogates. Some states provide robust legal protections, enforceable contracts, and seamless parentage procedures, while others impose restrictions or require additional legal steps, like post-birth adoption. Without a clear understanding of the laws specific to their state, intended parents may encounter unanticipated legal challenges that could impede or complicate their journey to parenthood. 

Also, it is important to work with an experienced reproductive law attorney to ensure a smooth and legally secure process. By staying informed and seeking proper legal guidance, intended parents can traverse the intricacies of surrogacy while protecting their rights and those of the surrogate