Surrogacy is an agreement, bound by a legal contract in most situations, in which a woman, known as a ‘surrogate’ agrees to deliver a child to another person or couple, who will be the child’s intended parents post-birth. As a result of modern science, people unable to have children can become parents through surrogacy.

Surrogacy in the USA

The procedures and regulations surrounding surrogacy in the United States can be a bit confusing and unclear. This is because the U.S. doesn’t have any federal laws or statutes in place regarding surrogacy. Hence, the rules differ from state to state. The statutes, legalities, and procedures in the United States depend on where you live and whether it is a surrogacy legal state. The procedures are considerably easier in states that support surrogacy than in those that do not. 

Since surrogacy is a fast-developing area in medicine, many of the laws being upheld by states in the U.S. are either outdated or don’t match the current standards of the practice. However, the interpretation and enforcement of certain laws can be subjective to the states and the legal authorities available there. 

Due to the lack of uniform regulations, the legalities of surrogacy in the U.S. can be confusing to understand. Therefore, it is important to highlight the states that recognize surrogacy and those that do not. This makes the process of choosing a surrogate and going through it smoother and simpler.  

That bifurcates the United States broadly into these different categories: surrogacy-friendly states and non-surrogacy friendly states. A surrogacy-friendly state would be one that accepts the practice of surrogacy and smoothens the legal procedure for the same. 

On the contrary, a non-surrogacy friendly state does not accept or enforce the procedure of surrogacy. In extreme cases, surrogacy can even be a criminal offense. 

Lastly, there are states which lie somewhere in between these two. They may accept surrogacy but it is advised to be cautious while going ahead with it.  

Let’s take a deeper look at the surrogacy laws by state currently upheld in the U.S. 

States Accepting Surrogacy in the U.S. 

This category more or less includes any state that are surrogacy legal states. They accept or recognize the practice of surrogacy and have statutes enforced in favor of the same. In many cases, these states also have a long history of ruling in favor of surrogacy. 

Here, surrogacy is accessible to all kinds of parents, and pre-birth orders are also granted easily without being partial to factors like the parents’ sexual orientation, marital status, and even genetic relationship to the child. They also have provisions for compensated and uncompensated surrogate agreements alike. 

However, traditional surrogacy is still considered legally risky as the statutes regarding the same are vague.

States where surrogacy is legal:

  • California
  • Connecticut
  • Colorado
  • Nevada 
  • Washington
  • New Hampshire
  • New Jersey
  • Vermont
  • Delaware
  • Maine
  • District of Columbia

The majority of the states that fall under this category are states where surrogacy is legal but the results rely on varying factors and the venue, too. Some of these states require following an additional post-birth legal procedure to complete the adoption process. 

The states are as follows:

  • Oregon
  • Utah 
  • Montana
  • New York
  • New Mexico
  • Texas
  • Alaska
  • Hawaii
  • North and South Dakota
  • Minnesota
  • Iowa
  • Kansas
  • Oklahoma
  • Missouri
  • Arkansas
  • Wisconsin
  • Illinois
  • Mississippi
  • Alabama
  • Georgia
  • Florida
  • North and South Carolina
  • West Virginia
  • Ohio
  • Kentucky
  • Pennsylvania
  • Maryland
  • Massachusetts
  • Rhode Island

Somewhere In Between

Here, we highlight states which are not entirely surrogacy legal states but are not exactly against surrogacy either. Hence, these states fall somewhere between the two extremes. 

Although surrogacy is practiced in these states, the authorities provide inconsistent or varying levels of protection to the intended parents. The legal process in these regions is also complicated and tedious. There is no guaranteed security provided by the law, so it is crucial to carry out the process with care. 

These are the states where caution is advised:

  • Idaho
  • Wyoming
  • Tennessee
  • Virginia

Additionally, some states lean more towards the non-surrogacy friendly side. Here, the contracts and agreements regarding surrogacy may be void or inconsequential. Even though surrogacy is practiced and parentage orders are issued by the legal authorities, the contracts remain unenforceable by statute. 

Therefore, the process of surrogacy needs to be carried out with immense care and caution. 

The states falling under this category are as follows:

  • Arizona
  • Indiana

States Against Surrogacy

Under this last category fall the states that strictly prohibit the practice of surrogacy. There are no pre-birth orders issued and there is no protection granted. Surrogacy contracts and agreements are not recognized by law and they are completely unenforceable. 

Traditional surrogacy is majorly discouraged and compensated agreements are not recognized in courts of law here. Moreover, these states have laws or statutes which explicitly forbid surrogacy. 

In these states, surrogacy can also be considered a chargeable offense making it subject to fines or criminal penalties. It would be in the couple’s or person’s best interest to steer clear of these states while partaking in surrogacy. 

States where surrogacy is not permitted:

  • Louisiana
  • Michigan
  • Nebraska

Why Is It Important To Know?

In the field of medicine, surrogacy is growing and changing at a high speed. The laws surrounding this area of medicine keep changing and updating. This makes it essential to know the surrogacy laws by state in the United States so you’re prevented from making any half-informed decisions. 

Knowing the legal provisions and restrictions also allows you to make a detailed contract or agreement which will guarantee you protection by the courts of law. Identifying the right and surrogacy-friendly states helps you ensure your safety and go through the process without any legal hurdles. 

It is advised to contact a skilled attorney for drafting your surrogacy contract. This makes sure that you are thorough with the laws and have identified the loopholes in the legal provisions, creating a full-proof and protective agreement. 

Surrogacy In California 

So far, California is considered to be the most accepting of surrogacy. Surrogacy in California is safe for both the intended parents as well as the surrogates. It does not matter where you live in the state; whether you’re in big cities like Los Angeles, San Francisco, and San Diego, or in the small towns and rural areas of the state, the protection provided will be equal and adequate. 

Heterosexual parents, parents with genetic disorders unwilling to pass down the disorder to their child, parents with health problems, and parents of the same sex are all allowed to opt for surrogacy without any discrimination. 

Additionally, the state also inhabits some of the best IVF clinics in the world, making it the best place for you to be a surrogate or a person looking for one.  

Conclusion

There are several factors to consider while opting for surrogacy. While there are still a few doubts regarding traditional surrogacy, gestational surrogacy is widely accepted in several states of the United States. 

Knowing the surrogacy laws by the state will help you be mindful of the several legal aspects you come across during the process. We hope this blog helped you understand the provisions and restrictions in the many states of the U.S.

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