Legalities of Surrogacy in US

Our agency works with gestational surrogates from all over the United States, but only surrogates who will be giving birth in a state that recognizes the validity of the contract and will uphold it should any discrepancies arise.

While people not living in the U.S are under the impression that surrogacy is legal throughout the U.S., the reality is more complex than that. The word “legal” is not specific enough when talking about surrogacy. Surrogacy comes in different flavors depending on each state’s laws &regulations. Some states allow surrogacy for all people, some only for heterosexual couples, in some one IP must have a biological connection to the child, and others only allow uncompensated surrogacy.

There are other websites that specialize in listing surrogacy laws, but it may be hard for a layman to determine which states are truly the best for them. Additionally, laws change frequently and are very hard to keep track of and provide up-to-date information on websites. So, while we will tell you that there are some states that are the broadest in whose names can go on the birth certificate (for example, in CA you can be a heterosexual, legally married, co-habitators, single, same-sex couple, using just a sperm donor and your own eggs, using an egg donor and your own sperm, using a sperm and egg donor) and you and your partner (if you have one) will have both names on the birth certificate and the contract will be upheld. That said, there are other states that may be good for some of these above listed situations and not for others. Because of that, we do not list the laws state-by-state, but rather encourage you to contact us and let us know your situation.

But to simplify things we can break them into 4 groups:

  1. Permitted – These states will permit surrogacy and uphold the contract – although there can be certain restrictions regarding the biological connection to the child and how or whether the surrogate can be compensated
  2. Unclear –In some states the surrogacy laws are not clearly spelled out – there may be no provisions in the law, they may be unclear or even ambiguous.
  3. Unenforceable – In these states the contracts will not be upheld by the courts if challenged.
  4. Prohibited – These states prohibit surrogacy and entering into a surrogacy arrangement is a criminal offense.

Since this is a legally complex arena, our agency only works with lawyers in states that are surrogate-friendly (meaning they courts acknowledge the contract, and will recognize and uphold the contract should a discrepancy arise). We only work with GS’s in these states, and can let you know which ones would be best for you given your situation – using your own eggs and sperm, an egg donor, whether you are single, same sex, legally married – etc. Each of these factors determines what states are legally consistent wither your situation so that your names go on the birth certificate and the laws will uphold the contract.