Surrogacy Laws by State
Surrogacy laws in the United States can be complicated, depending in what state you are in. Find out if gestational surrogacy is legal in your state by looking up your state's current laws on surrogacy down below.
Alabama | Alaska | Arizona | Arkansas | California | Colorado | Connecticut | Delaware | District of Columbia | Florida | Georgia | Hawaii | Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky | Louisiana | Maine | Maryland | Massachusetts | Michigan | Minnesota | Mississippi | Missouri | Montana | Nebraska | Nevada |New Hampshire | New Jersey | New Mexico | New York | North Carolina | North Dakota | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Vermont | Virginia | Washington | West Virginia | Wisconsin | Wyoming
Alabama Surrogacy Law
Summary: Alabama law does not directly address surrogacy, but at least one court has acknowledged the parental rights of non-biological participants in a surrogacy arrangement.
Explanation: There is no statutory provision in Alabama law specifically addressing the validity of surrogacy arrangements. Statutes dealing with placing children for adoption and “baby-buying” specifically indicate that they do not apply to surrogate motherhood. The courts have not dealt with the validity of surrogacy agreements; however, in 1996 a case arose in the context of a divorce proceeding between a husband and wife who had been part of a traditional surrogacy agreement (one in which the surrogate mother is the biological contributor of the egg). The Court awarded custody to the wife even though she was biologically unrelated to the child. The husband challenged the decision on the ground that, as the sperm donor in the surrogacy arrangement, he was the child's only biological parent. The Court rejected his request and permitted the child to remain with the wife on the basis of the best interests of the child. Although the validity of the surrogacy agreement was not addressed, the Court did consider the wife a legal parent even though she was not genetically related to the child.
Citations: ALA. CODE §§ 26-10A-33, 34 (2009); Brasfield v. Brasfield, 679 So.2d 1091 (Ala. Civ. App. 1996).
Alaska Surrogacy Law
Summary: The Alaska statutes are silent with regard to surrogacy agreements, and the only reported state court case that touched on the issue was decided on unrelated grounds.
Explanation: In the case of In re T.N.F., the Alaska Supreme Court treated surrogacy as a type of adoption. This 1989 child custody case concerned a Chickasaw woman who orally agreed to be inseminated by sperm from her sister’s husband to bear a child for them. The surrogate mother signed legal adoption papers upon relinquishing custody, but then sought to have the adoption invalidated on the basis that it had not been carried out in accordance with a relevant federal statute related to Indian governance. The Court rejected her petition for certiorari (petition for appeal), finding that the state’s adoption laws had a one-year statute of limitations, and the Plaintiff had failed to file her complaint on time.
Citations: In re T.N.F., 781 P.2d 973 (Alaska 1989).
Arizona Surrogacy Law
Summary: Arizona law prohibits both traditional surrogacy agreements and gestational surrogacy agreements, but part of that statute has been ruled unconstitutional by an appellate court.
Explanation: An Arizona statute forbids “surrogate parent contracts,” and it states that if a surrogacy occurs, the surrogate is the legal mother of the child. Furthermore, the surrogate’s husband, if she is married, is presumed to be the father of the child; however, the law maintains that this presumption can be rebutted by evidence. The automatic determination of surrogate as legal mother was challenged in the 1994 case, Soos v. Superior Court ex rel. County of Maricopa. In Soos, a husband and wife entered into a gestational surrogacy agreement using the eggs from the wife and sperm from the husband. During the course of the surrogate’s pregnancy, the wife filed for divorce and sought custody of the unborn triplets. The husband argued that he was the biological father of the children and, pursuant to Arizona law, the surrogate was the biological mother. The trial court found that the provision automatically conferring legal-mother status to the surrogate was unconstitutional. An Arizona Court of Appeals upheld the trial court’s conclusion, finding that the statute violated the Equal Protection Clause of the Fourteenth Amendment by granting the intended father an opportunity to establish legal parentage but denying that same chance to the intended mother. However, because the appellate court opinion may only have struck down one provision of the surrogacy law, and because the Arizona Supreme Court chose not to review the case, the precise scope of the law prohibiting surrogacy agreements is unclear. At the very least, Soos establishes that an intended mother in the counties within the jurisdiction of Appellate Division One (Apache, Coconino, La Paz, Maricopa, Mohave, Navajo, Yavapai and Yuma) is entitled to rebut the presumption that a surrogate is the legal mother of a child born of a surrogacy arrangement.
Citations: ARIZ. REV. STAT. § 25-218 (2008); Soos v. Superior Court ex rel. County of Maricopa, 897 P.2d 1356 (Ariz. Ct. App. 1994).
Arkansas Surrogacy Law
Summary: Arkansas law provides for surrogacy contracts, but it is unclear how courts would apply the law to surrogacy situations involving lesbian, gay, bisexual and transgender (LGBT) individuals and couples.
Explanation: State law generally holds surrogacy contracts valid and enforceable. It also has clear guidelines that outline legal parentage in several different surrogacy scenarios: (1) if the intended father is the sperm donor, and he is married to the intended mother, then they are both considered the legal parents; (2) if the intended father is the sperm donor and he is unmarried, then he is the sole parent; and (3) if an anonymous donor inseminated the traditional surrogate, then the intended mother is the legal parent. The case law does not specifically address surrogacy by same-sex couples, but some cases do show a broad support for surrogacy agreements in Arkansas. In 1993, a surrogate mother decided that she wanted to keep the twins she was carrying. Because she lived in Michigan, where surrogacy is illegal, a court granted her petition to revoke the surrogacy contract, but the court also granted custody to the intended father in Arkansas, only granting her visitation rights. After the surrogate failed to contact the children for one year, the wife of the intended father moved to adopt them. The Arkansas Supreme Court granted the petition to adopt, finding it in the best interests of the children. While the case was decided on neutral custody law, it does demonstrate the degree to which Arkansas courts are willing to assert their jurisdiction to protect surrogacy agreements. The Supreme Court heard another case related to a surrogacy agreement in 1998, when a husband and wife who arranged to have a child through a surrogate mother in California went to Arkansas for the required thirty days to legally adopt the child. They took this action because the state of California mandated a six-month residency as a prerequisite for adoption. The Arkansas Supreme Court upheld the surrogacy agreement and awarded custody to the intended parents.
In November 2008, voters in Arkansas approved a ballot measure making it illegal for unmarried, cohabiting individuals to adopt or provide foster care to minors. While this law applies to all individuals who fit the description, it was clearly aimed at rescinding the rights of the LGBT community, and it suggests that although Arkansas has some of the most liberal laws in the country with regard to surrogacy agreements, it remains unclear how the state’s courts would apply these particular provisions to LGBT individuals or couples.
Citations: ARK. CODE ANN. §§ 9-10-201, 301, 304 (2009); In re Adoption of K.F.H., 844 S.W.2d 343 (Ark. 1993); In re Samant, 970 S.W.2d 249 (Ark. 1998).
California Surrogacy Law
Summary: California is accepting of surrogacy agreements and upholds agreements that include lesbian, gay, bisexual and transgender (LGBT) individuals. While the state has no statute directly addressing surrogacy, California’s courts have used the state’s Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases in the country regarding surrogacy rights (Johnson v. Calvert) was decided in California.
Explanation: In 1993, the California Supreme Court decided Johnson v. Calvert, in which they held that the intended parents in a gestational surrogacy agreement (in which the surrogate is not the biological contributor of the egg) should be recognized as the natural and legal parents. The court decided that the person who intended to procreate – in this case, the mother who provided her egg to the surrogate – should be considered the natural mother.
In the 1994 case of In re Marriage of Moschetta, a California Court of Appeals addressed the question of how to determine parentage when a child is conceived via traditional surrogacy (in which the surrogate mother is the biological contributor of the egg) and is born after the intended parents had separated. The Court held that the intended father and the surrogate mother were the legal parents of the child, leaving the intended mother without parental rights.
The 1998 case, In re Marriage of Buzzanca, is an example of how complex the facts in surrogacy cases can get. In Buzzanca, a gestational surrogate was impregnated using an anonymous egg and anonymous sperm. In other words, one could identify six individuals as having the potential to be a legal parent of the child: the egg donor, the sperm donor, the intended mother, the intended father, the gestational mother or the husband of the gestational mother. Ultimately, the Court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the intended parents are the lawful parents of the child.
Finally, in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G. The court held that under the Uniform Parentage Act, two women can be the legal parents of a child produced through surrogacy. This ruling presumably applies to all members of the LGBT community.
Citations: CAL. FAM. CODE § 7600 et seq. (2009); Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); K.M. v. E.G., 117 P.3d 673 (Cal. 2005); Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998); In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Cal. Ct. App. 1994).
Colorado Surrogacy Law
Summary: There are no Colorado statutes that deal directly with the issue of surrogacy.
Explanation: Colorado statute § 19-4-103 states that “[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Additionally, statute § 19-4-106 governs parental rights with regard to children conceived through assisted reproduction; however, the statute explicitly excludes surrogacy agreements by addressing only women who seek “to conceive a child for [themselves], not as . . . surrogate[s].”
Citations: COLO. REV. STAT. §§ 19-4-103, 106 (2008).
Connecticut Surrogacy Law
Summary: Surrogacy law in Connecticut is uncertain, but favorable. The statutes are silent with regard to surrogacy agreements, but various cases have looked favorably on such agreements, including a case concerning a same-sex couple.
Explanation: The Connecticut Supreme Court, in Doe v. Doe, decided a custody dispute in 1998 between a husband and wife over a child born to a surrogate mother through a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg). The court ruled in favor of the wife, stating that the wife’s role in raising the child was enough to overcome the statutory presumption that it is in the child’s best interests to be in the custody of a biological parent (in this case, either the husband or the surrogate mother). However, the Court explicitly stated that it was not addressing “whether, or to what extent a surrogate contract . . . is enforceable.”
In the 1998 case of Doe v. Roe, the Connecticut Supreme Court found that a trial court had subject matter jurisdiction to approve an adoption agreement that includes a surrogate mother’s consent to termination of her parental rights. The surrogate mother had argued that the contract was void because it was against public policy. The Court once again explicitly stated that it was not deciding the validity of surrogacy contracts.
In the 2008 case of Cassidy v. Williams*, a same-sex couple had contracted with a gestational surrogate (in which the surrogate mother is not the biological contributor of the egg), who subsequently became pregnant with twins. The Superior Court ordered: (1) “that the plaintiffs . . . be declared and adjudged the intended parents of both” children; (2) “that the gestational carrier agreement . . . is found to be valid, enforceable, irrevocable and of full legal effect;” (3) “that [the surrogate] is declared not to be the mother of the unborn children;” (4) that the hospital place the surrogate’s name on the birth certificates; and (5) that the Department of Public Health prepare replacement birth certificates, replacing the surrogate’s name with the names of the intended parents.
Now that same-sex couples have the right to marry in Connecticut, it seems likely that a court would look favorably upon a surrogacy agreement involving LGBT individuals.
Citations: Cassidy v. Williams, 2008 Conn. Super. LEXIS 1727 (Conn. Super. Ct. 2008)*; Doe v. Doe, 710 A.2d 1297 (Conn. 1998); Doe v. Roe, 717 A.2d 706 (Conn. 1998). *At the time of this writing, this case is unreported and may be subject to further appellate review.
D.C. Surrogacy Law
Summary: All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are prohibited by law in the District of Columbia.
Explanation: Under D.C. law, both traditional and gestational surrogacy agreements are prohibited and unenforceable. Violation of the statute is punishable by a fine of up to $10,000.00, or jail time of as much as one year, or both. However, it is important to note that this law prohibits only surrogacy agreements, and not the act of surrogacy itself.
Citations: D.C. CODE §§ 16-401, 402 (2009); In re M.M.D., 662 A.2d 837 (D.C. 1995).
Delaware Surrogacy Law
Summary: While the Delaware statutes do not address surrogacy agreements, the ruling of at least one court suggests that those agreements go against the public policy of the state. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In the 1988 case of Hawkins v. Frye, a Delaware Family Court held that a “contractual agreement to terminate parental rights . . . is against the public policy of this [s]tate and may not be enforced by the [c]ourt.” Hawkin s did not involve a surrogacy agreement, but rather concerned a contract to terminate parental rights through a “Property Division Agreement” after a divorce. The Court noted that the state legislature had not “provide[d] for termination of parental rights by contractual agreement of the parents” and analogized the case to the well-publicized Baby M. surrogacy case in New Jersey. The Delaware court held that “the receipt of money in connection with an adoption is barred by Delaware law,” and the termination of parental rights through contractual agreement is forbidden. Every surrogacy agreement terminates the parental rights of someone who has a legal claim to parentage, so the precedent of Hawkins suggests that all surrogacy agreements are against the public policy of Delaware law.
There is no explicit prohibition in Delaware on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals adopting a child of their same-sex partner. In fact, a Delaware Family Court determined in the 2001 case of In re Hart that an individual had a right to petition to adopt the child of his or her same-sex partner.
Citations: In re Hart, 806 A.2d 1179 (Del. Fam. Ct., 2001); Hawkins v. Frye, 1988 Del. Fam. Ct. LEXIS 31 (Del. Fam. Ct. 1988).
Florida Surrogacy Law
Summary: Florida law explicitly allows both gestational surrogacy agreements and traditional surrogacy agreements, but neither is available to same-sex couples.
Explanation: Florida gestational surrogacy statutes impose strict requirements on the contracts, among them limiting involvement to “couple[s that] are legally married and are both 18 years of age or older.” The law governing traditional surrogacy arrangements, which are referred to as “pre-planned adoption agreements,” connects those contracts to state adoption law. Additionally, Florida law explicitly prohibits “homosexuals” from adopting. In 2004, this law was upheld in federal court by the 11th Circuit Court of Appeals in the case of Lofton v. Kearney.
In the 2000 case of Lowe v. Broward County, a Florida District Court of Appeals noted that the right to enter into surrogate-parenting agreements is reserved for married couples only and is one of the many rights that domestic partners are denied. While the ruling concerned only the Broward County Domestic Partnership Act, it is possible that Florida courts could interpret other county domestic partnership laws in a similar way.
Citations: FLA. STAT. § 63.212 (2009); FLA. STAT. §§ 742.11-16 (2009); Lofton v. Kearney, 358 F. 3d 804 (11th Cir. 2004); Lowe v. Broward County, 766 So. 2d 1199 (Fla. Dist. Ct. App. 2000); Wakeman v. Dixon, 921 So. 2d 669 (Fla. Dist. Ct. App. 2006).
Georgia Surrogacy Law
Summary: There are no statutory provisions or published cases dealing with the issue of surrogacy.
Hawaii Surrogacy Law
Summary: There are no statutory provisions or published cases dealing with the issue of surrogacy.
Idaho Surrogacy Law
Summary: The Idaho statutes do not address surrogacy agreements, but case law indicates such contracts may be enforceable in the state. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In the 1986 case of DeBernardi v. Steve B.D., a biological mother sought custody of a child after she had relinquished custody to the adoptive parents. Maintaining that a custody decision is governed by the “best interests of the child” standard, the Idaho Supreme Court determined that biology was not the sole factor to be considered. Instead, the Court held that when the biological mother relinquishes custody, absent fraud, duress or undue influence in the adoption process, she should be bound to that choice. Particularly significant to the Court was the fact that the child had lived for a long time with the adoptive parents and had developed a strong bond with them. While not at issue, the legality of surrogate agreements could be implicit in the decision.
Citations: DeBernardi v. Steve B.D., 723 P.2d 829 (Idaho 1986).
Illinois Surrogacy Law
Summary: Illinois law allows gestational surrogacy agreements, but does not address traditional surrogacy agreements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In 2004, the Illinois legislature passed the Gestational Surrogacy Act. Under the Act, the intended parents in a gestational surrogacy arrangement gain full custody upon the birth of the child. However, the Act also sets strict eligibility guidelines for both the surrogate and the intended parents. The surrogate must: (1) be at least 21 years of age; (2) have given birth to at least one child; (3) have completed a medical evaluation; (4) have completed a mental health evaluation; (5) have consulted with independent legal counsel regarding the terms and legal consequences of the gestational surrogacy; and (6) have a health insurance policy (throughout the pregnancy and for eight weeks after the birth) that covers major medical treatments and hospitalization. The intended parents must: (1) contribute at least one of the gametes (egg or sperm) required to produce the child; (2) have a medical need for the gestational surrogacy; (3) have completed a mental health evaluation; and (4) have consulted with independent legal counsel regarding the terms and legal consequences of the gestational surrogacy. The Act also includes several requirements that the surrogacy contract itself must meet.
The requirements set forth by the Gestational Surrogacy Act are burdensome, but there is no indication that a lesbian, gay, bisexual or transgender (LGBT) couple would be prohibited from qualifying.
Citations: 750 ILL. COMP. STAT. ANN. 47/1 et seq. (2009); Petition of K.M., 653 N.E.2d 888 (Ill. App. Ct. 1995).
Indiana Surrogacy Law
Summary: Indiana law declares that all surrogacy contracts, regardless of the sexual orientation of the individuals involved, are against public policy and unenforceable.
Explanation: State law declares surrogacy contracts “void and unenforceable.” Specifically, the law lists several broad contractual terms that, if any is included, void a surrogacy agreement. Such forbidden terms include requiring a surrogate: to provide a gamete (a mature sexual reproductive cell) to conceive a child; to become pregnant herself; or to waive her parental rights or duties. These provisions are typically at the heart of any traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg) or gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg). However, it is important to note that this law prohibits only surrogacy agreements, and not the act of surrogacy itself.
Citations: IND. CODE ANN. § 31-20-1-1 (2009); In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004); In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003); In re Infant Girl W., 845 N.E.2d 229 (Ind. Ct. App. 2006).
Iowa Surrogacy Law
Summary: Iowa law seems to implicitly accept surrogacy agreements, but no statute directly addresses the topic. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Iowa Code § 710.11 criminalizes the purchase or sale of a human being; however, the statute specifically says:
This section does not apply to a surrogate mother arrangement. For purposes of this section, a “surrogate mother arrangement” means an arrangement whereby a female agrees to be artificially inseminated with the semen of a donor, to bear a child, and to relinquish all rights regarding that child to the donor or donor couple.
Although states such as Alabama have statutory language that excludes surrogacy from laws concerning adoption or “baby-buying,” the language of the Iowa statute seems to suggest that surrogacy agreements are at least contemplated by the law and do not go against the public policy of the state.
Citations: IOWA CODE § 710.11 (2008).
Kansas Surrogacy Law
Summary: There are no statutes regarding surrogacy. However, two attorney general opinions indicate that surrogate parenting agreements in general are unenforceable in the state.
Explanation: In 1982, the Kansas Attorney General wrote an opinion stating that a surrogate parent contract would be void as against public policy. The opinion warned against the commercialization and commoditization of motherhood, arguing that these contracts would be unenforceable as going against public policy until they receive legislative approval. In 1996, the Kansas Attorney General wrote an opinion discussing whether surrogate motherhood should be considered a “professional service,” which would place it under the governance of a state statute that addresses fees in adoption proceedings. The statute in question permits reasonable fees for “legal and other professional services rendered in connection with the placement or adoption.” The Attorney General concluded that surrogate motherhood does not fit into the definition of “professional service;” however, the opinion did note that it is permissible to provide reasonable living expenses for a surrogate mother during her pregnancy.
Citations: 29 Op. Kan. Att'y Gen. No. 96-73 (Sept. 11, 1996), 1996 Kan. AG LEXIS 73; 54 Op. Kan. Att'y Gen. No. 82-150 (July 2, 1982), 1982 Kan. AG LEXIS 137.
Kentucky Surrogacy Law
Summary: There is no statutory provision in Kentucky directly addressing the validity of surrogacy agreements, but a Kentucky Supreme Court case and an Attorney General opinion indicate that uncompensated agreements may be permissible. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: A 1980 opinion from the Kentucky Attorney General cautions against compensated surrogacy agreements. He concluded that “contracts involving surrogate parenthood are illegal and unenforceable in the Commonwealth,” basing his opinion on statutory provisions barring the sale of children and requiring voluntary consent for adoption, as well as “strong public policy against the buying and selling of children.”
Kentucky case law indicates approval for uncompensated surrogacy agreements, but it is unclear how a court would evaluate a surrogacy agreement involving money. In 1986, the Kentucky Attorney General sought to revoke the corporate charter of an agency that arranged surrogacy contracts. In the resulting lawsuit, the Attorney General argued that surrogacy contracts arranged by the company violated statutes that barred the sale of a child for purposes of adoption, as well as statutes that invalidated a mother’s consent to adoption prior to the birth of her child. However, the Kentucky Supreme Court held that traditional surrogacy agreements (in which the surrogate mother is the biological contributor of the egg) were fundamentally different than the practice of buying and selling children. The Court reasoned that laws against the purchase and sale of children are intended to protect individuals from overwhelming mothers with financial incentives. Surrogacy arrangements, on the other hand, are made prior to the conception of the child; thus, the surrogate mother is concerned not with the results of an unwanted pregnancy or the financial burden of raising a child, but rather with assisting an infertile couple. The Court found that it was not up to the judicial branch to “cut off [procreative] solutions offered by science.” However, they also held that surrogacy contracts are voidable (meaning they can be broken by one of the parties involved), rather than illegal.
Citations: Op. Ky. Att'y Gen. No. OAG 81-18 (Jan. 26, 1981), 1981 Ky. AG LEXIS 399; Surrogate Parenting Assocs. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986).
Louisiana Surrogacy Law
Summary: Louisiana has a statute that holds compensated traditional surrogacy agreements void and unenforceable, but does not address uncompensated agreements or gestational surrogacy agreements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: The relevant Louisiana statute establishes that “[a] contract for surrogate motherhood as defined herein shall be absolutely null and shall be void and unenforceable as contrary to public policy.” The statute further states:
“Contract for surrogate motherhood” means any agreement whereby a person not married to the contributor of the sperm agrees for valuable consideration to be inseminated, to carry any resulting fetus to birth, and then to relinquish to the contributor of the sperm the custody and all rights and obligations to the child.
Citations: LA. REV. STAT. ANN. § 9:2713 (2009).
Maryland Surrogacy Law
Summary: While Maryland does not have a specific law that addresses surrogacy agreements, related laws might hold compensated agreements unenforceable. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Maryland law bans payment for adoption services. It also prohibits the sale or purchase of minors and punishes this act by a fine and/or jail time. The question as to whether or not these laws apply to surrogacy agreements is widely contested among politicians and legal academics in the state. A 2000 opinion by the Maryland Attorney General indicates that surrogacy contracts involving the payment of a fee to the birth mother are generally illegal and unenforceable based on existing state law. This implies that the state does not consider uncompensated surrogacy contracts to be illegal. The Attorney General’s opinion also states that the payment of a surrogacy fee could not by itself bar approval of an adoption petition and that the decision to grant an adoption must turn on the best interests of the child.
Citations: Citations: MD. CODE ANN., FAM. LAW § 5-327 (2009); MD. CODE ANN., CRIM. LAW § 3-603 (2009); 85 Op. Md. Att'y Gen. 348 (December 19, 2000), 2000 Md. AG LEXIS 31; Abby Brandel, Legislating Surrogacy: A Partial Answer to Feminist Criticism, 54 Md. L. Rev. 488 (1995).
Massachusetts Surrogacy Law
Summary: Massachusetts statutes are silent with regard to surrogacy agreements, but various cases have looked favorably on such agreements, although no case has addressed the issue with regard to lesbian, gay, bisexual and transgender (LGBT) individuals.
Explanation: Massachusetts courts have generally treated surrogacy contracts favorably. In a 1998 case, the surrogate mother in a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg) decided in the sixth month of her pregnancy to keep the child. The Supreme Judicial Court of Massachusetts found that two elements must exist to validate a surrogacy agreement: the surrogate mother's consent to the surrogacy must last until four days after the birth; and the surrogate mother must receive no compensation. The Court found that the following conditions might also be important in deciding the enforceability of a surrogacy agreement: (a) that the surrogate mother's husband give his informed consent to the agreement in advance; (b) that the surrogate mother is an adult and has had at least one successful pregnancy; (c) that the surrogate mother, her husband, and the intended parents have been evaluated for the soundness of their judgment and for their capacity to carry out the agreement; (d) the intended mother be incapable of bearing a child without endangering her health; (e) the intended parents be suitable persons to assume custody of the child; and (f) all parties have the advice of counsel. However, the Court emphasizes that no agreement is per se valid, stating “the mother and father may not . . . make a binding best-interests-of-the-child determination by private agreement. Any custody agreement is subject to a judicial determination of custody based on the best interests of the child.”
The 2001 case of Culliton v. Beth Israel Deaconess Med. Ctr. involved a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg). In Culliton, the Supreme Judicial Court granted a joint request from the compensated gestational mother, the genetic mother, and the genetic father to have the genetic parents listed as the twins’ parents on their birth certificates. While this further indicates the judiciary’s openness to surrogacy agreements, the Court did not give a ringing endorsement of the enterprise. The Court stated that current state law did not address gestational surrogacy agreements and set forth criteria under which lower courts may review requests for atypical birth-certificate assignations in surrogacy cases. Those criteria are: (a) the plaintiffs are the sole genetic sources; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment, the plaintiffs agree that they have waived any contradictory provisions in the contract. The Court also noted that the gestational mother being related to one of the genetic parents is a factor that could tilt one of these cases towards a positive disposition.
Citations: Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).
Michigan Surrogacy Law
Summary: All surrogacy agreements are prohibited by law in Michigan.
Explanation: Michigan has very strict laws prohibiting surrogacy contracts. State law not only holds these agreements unenforceable, but also imposes fines (up to $50,000.00) and jail time (up to five years) on anyone who enters into such a contract.
Michigan courts have upheld the validity of this law. In one 1981 case, individuals involved in compensated surrogacy agreements challenged the constitutionality of statutes barring the exchange of money or other consideration in connection with adoption and related proceedings. In a very short opinion, a Michigan Court of Appeals concluded that state regulation of adoption in this manner does not infringe on individuals’ federal constitutional due process right to procreation.
In the 1992 case of Doe v. Att’y Gen., several would-be participants in surrogacy arrangements challenged the law, arguing that the state had no compelling interest in prohibiting surrogacy. A Michigan Court of Appeals disagreed and found three compelling state interests: (1) preventing children from becoming commodities; (2) serving the best interests of children; and (3) preventing the exploitation of women. Further clarifying the surrogacy statute, the Court noted that any agreement involving conception and relinquishment of parental rights by the surrogate is void.
Citations: MICH. COMP. LAWS §722.851-861 (2009); Doe v. Att’y Gen., 487 N.W.2d 484 (Mich. Ct. App. 1992); Doe v. Kelley, 307 N.W.2d 438 (Mich. Ct. App. 1981); Syrkowski v Appleyard, 362 N.W.2d 211 (Mich. 1985).
Minnesota Surrogacy Law
Summary: There are no statutory provisions or published cases dealing with the issue of surrogacy. However, there is an unpublished court opinion and anecdotal evidence suggesting the law would look favorably on surrogacy.
Explanation: In a 2007 case, a Minnesota Court of Appeals reviewed an appeal from a District Court judgment involving a gestational surrogacy agreement. The Plaintiff in the case was an HIV-positive gay male from New York who agreed to pay the Defendant surrogate $20,000.00 to gestate an embryo, which was created with a donor egg and the Plaintiff’s sperm. The agreement included a clause, known as a ‘choice-of-law provision,’ calling for Illinois law to govern the contract (most of the medical procedures were performed in Illinois). When the child was born and the surrogate mother failed to transfer custody, the Plaintiff filed a paternity action in Minnesota. The Court affirmed the holding of the District Court, finding that the Plaintiff was the father of the child and denying the parental rights of the surrogate mother. The Court upheld the District Court’s determinations that Illinois law applied and that the agreement did not violate the public policy of Minnesota. However, the opinion in this case is unpublished, and it may not be cited unless permitted by statute.
The lack of surrogacy statutes in Minnesota is not due to a lack of awareness or effort by the state government. On May 12, 2008, the legislature passed a bill that would allow state regulation of gestational surrogacy agreements. Importantly, the legislation used the gender-neutral language of “intended parents,” and the effort by some state legislators to replace the words “parents” with “mother and father” failed. Unfortunately, the bill, which passed the Senate by a vote of 41-22 and the House by a vote of 86-46, was vetoed by Republican Governor Tim Pawlenty.
Citations: P.G.M. v. J.M.A., 2007 Minn. App. Unpub. LEXIS 1189 (Minn. Ct. App. filed December 11, 2007); Posting of Andy Birkey to RH Reality Check, http://www.rhrealitycheck.org/blog/2008/05/16/ surrogacy-bill-passes-minnesota-legislature (March 19, 2009, 07:00 EST); Jonathan Kaminsky, Tim Pawlenty: Governor No, City Pages, July 22, 2008, http://www. citypages.com/2008-07-23/news/tim-pawlenty-governor-no/1.
Missouri Surrogacy Law
Summary: Missouri law does not directly address surrogacy agreements; however, it is possible that they are in violation of the state’s “child trafficking” laws. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In Missouri, the crime of “trafficking in children” is a felony, and it includes payment for “delivery or offer of delivery of a child . . . for purposes of adoption, or for the execution of consent to adopt or waiver of consent to future adoption or consent to termination of parental rights.” A compensated surrogacy agreement might run afoul of this law. For a detailed discussion on the legitimacy of gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg) under Missouri law, see Yvonne M. Warlen, Note, The Renting of the Womb: An Analysis of Gestational Surrogacy Contracts Under Missouri Contract Law, 62 UMKC L. Rev. 583 (1994).
Nebraska Surrogacy Law
Summary: Nebraska law declares compensated surrogacy agreements void and unenforceable, but it is possible that the law would uphold uncompensated agreements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Nebraska state law declares that “[a] surrogate parenthood contract entered into shall be void and unenforceable.” The law defines a surrogate parenthood contract as “a contract by which a woman is compensated for bearing a child of a man who is not her husband.” (emphasis added). Nebraska law also states that “[t]he biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to” a child born of a surrogate parenthood contract. This means that if a child is born of a compensated surrogacy agreement, then custody of that child lies jointly in the hands of the biological father and the gestational mother. The fact that Nebraska law only prohibits compensated surrogacy agreements suggests that uncompensated agreements are legal.
In 2002, the Nebraska Supreme Court declared that state law does not permit “two non-married persons to adopt a minor child, no matter how qualified they are.” One can infer from such a decision that a Nebraska court might look unfavorably upon a surrogacy agreement involving lesbian, gay, bisexual or transgender individuals.
Citations: NEB. REV. STAT. § 25-21,200 (2009); In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002).
Nevada Surrogacy Law
Summary: Nevada law explicitly permits married people to enter into a surrogacy agreement, but the enactment of the Nevada Domestic Partnership Act raises questions about the possibility of lesbian, gay, bisexual and transgender (LGBT) individuals who are in domestic partnerships entering enforceable surrogacy agreements.
Explanation: A Nevada statute restricts the adopting parties in a surrogacy agreement to people “whose marriage is valid” under Nevada law. The statute defines “intended parents” as “a man and a woman, married to each other.” This specific language indicates that it is unlikely an LGBT individual or couple would be permitted to enter into an enforceable surrogacy agreement.
However, the Nevada Domestic Partnership Act states that “[d]omestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses.” The Act also establishes that “[t]he rights and obligations of domestic partners with respect to a child of either of them are the same as those of spouses.” It remains to be seen how this apparent conflict in the law will be resolved.
Citations: NEV. REV. STAT. § 126.045 (2009); 2009 Nev. ALS 393 (2009).
New Hampshire Surrogacy Law
Summary: New Hampshire law allows surrogacy agreements, but it is not completely clear that lesbian, gay, bisexual and transgender (LGBT) individuals can enter into enforceable surrogacy agreements.
Explanation: According to New Hampshire law, “‘[i]ntended parents,’ including an ‘intended father’ and ‘intended mother,’ means people who are married to each other, and who enter a surrogacy contract with a surrogate by which they are to become the parents of the resulting child.” Additionally, there are certain eligibility requirements that all surrogacy agreements must meet, and they specifically mention the intended mother and intended father: “The intended mother shall be medically determined to be physiologically unable to bear a child without risk to her health or to the child's health;” “[t]he intended mother or the intended father shall provide a gamete to be used to impregnate the surrogate;” “[t]he intended mother or surrogate shall provide the ovum.” These factors suggest that surrogacy agreements are unavailable to LGBT individuals; however, now that same-sex couples have the right to marry in New Hampshire, it seems possible that a court would look favorably upon a surrogacy agreement involving LGBT individuals.
Citations: N.H. REV. STAT. ANN. §§ 168-B:1-B:32 (2009).
New Jersey Surrogacy Law
Summary: New Jersey permits only uncompensated gestational surrogacy agreements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Surrogacy cases in New Jersey have created a fairly well-defined common law rule that prohibits traditional surrogacy arrangements that allows only uncompensated gestational surrogacy arrangements. In perhaps the most famous surrogacy case in the nation, In re Baby M, the New Jersey Supreme Court in 1988 invalidated a traditional surrogacy agreement, which provided a $10,000.00 fee to the surrogate mother. The Court barred the use of money in an adoption placement and further held that no one could contractually abandon their parental rights.
In another case in 2000, a New Jersey Superior Court addressed the rights of intended parents in an uncompensated gestational surrogacy arrangement. The intended parents sought to compel the state’s Attorney General to put their names on the birth certificate. The Court found that in gestational surrogacy arrangements, the intended parents must wait 72 hours after the birth before the surrogate can surrender custody. However, under New Jersey law, the birth certificate has to be filed within five days after the birth of the child. Thus, a two-day window exists during which intended parents can be placed on the birth certificate.
Citations: A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. 2000); In the Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995); In re Baby M, 537 A.2d 1227 (N.J. 1988).
New Mexico Surrogacy Law
Summary: New Mexico law appears to only permit uncompensated surrogacy agreements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: New Mexico law forbids “payment to a woman for conceiving and carrying a child.” However, the law allows payment for medical and other similar expenses incurred “by a mother or the adoptee.”
Citations: N.M. STAT. § 32A-5-34 (2009).
New York Surrogacy Law
Summary: All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are void and unenforceable under New York law.
Explanation: New York case law indicates that surrogacy contracts are contrary to the state’s public policy. In one 1990 case, decided before the statutory ban on surrogacy agreements was passed, a married couple had entered into an extensive contract with a surrogate, including a $10,000.00 “surrogate fee.” A New York Family Court found the surrogate’s commitment to relinquish the child she carried could not be truly voluntary because of the financial inducement. Although the Court went on to find that its conclusion might be altered by a sworn statement by the surrogate that the child’s best interests lie with the contracting couple, this option is probably foreclosed by the subsequent passage of the law voiding surrogacy agreements.
Surrogacy agreements may be void and unenforceable, but that has not prevented New York courts from recognizing the parental rights of intended parents in a surrogacy situation. In a 1994 custody dispute, a New York Appellate Court found that a woman with no genetic connection to her children could still be their legal mother. In that case ( McDonald v. McDonald), a woman gave birth to twins after gestating an embryo that was created from her husband’s sperm and a donated egg. The Court relied heavily on the famous California case of Johnson v. Calvert (see the information on California) to reach their conclusion that the intended mother was the legal mother.
In the 2004 case of Doe v. New York City Bd. of Health, the intended mother of triplets was not required to provide DNA evidence to be granted parental rights after the gestational surrogate (someone who is not genetically related to the child she is carrying) relinquished her parental rights.
Citations: N.Y. DOM. REL. LAW § 122 (2009); In the Matter of the Adoption of Paul, 550 N.Y.S.2d 815 (N.Y. Fam. Ct. 1990); Doe v. New York City Bd. of Health, 782 N.Y.S.2d 180 (N.Y. Sup Ct. 2004); McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 1994).
North Carolina Surrogacy Law
Summary: North Carolina has no laws directly regarding surrogacy; however, other laws appear to allow surrogacy arrangements that do not include payment beyond the surrogate’s medical and related expenses. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: North Carolina adoption law generally forbids compensation for consent to adopt or relinquishment of parental rights, but there are exceptions to this rule. For example, the law allows payments for an expecting mother’s medical and related expenses during her pregnancy. Such payments may not be contingent on the relinquishment of parental rights or the placement of the child for adoption; however, the law also states that “[a] prospective adoptive parent may seek to recover a payment if the parent or other person receives or accepts it with the fraudulent intent to prevent the proposed adoption from being completed.”
Citations: N.C. GEN. STAT. § 48-2-301 (2009); N.C. GEN. STAT. §§ 48-10-102, 103 (2009).
North Dakota Surrogacy Law
Summary: Under North Dakota law, traditional surrogacy agreements are void and unenforceable, but gestational surrogacy agreements are legal and enforceable. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: The language of North Dakota Code § 14-18-05 appears to render all surrogacy agreement (both traditional and gestational) void and unenforceable, and it establishes that the surrogate and her husband are the legal parents of the child. However, Code Section 14-18-08 explicitly states that “[a] child born to a gestational carrier is a child of the intended parents for all purposes and is not a child of the gestational carrier and the gestational carrier's husband, if any.” It appears that North Dakota law draws a distinction between “surrogates” and “gestational carriers.”
Citations: N.D. CENT. CODE §§ 14-18-05, 08 (2009).
Ohio Surrogacy Law
Summary: Ohio surrogacy law is unsettled; however, various court decisions seem to indicate that some surrogacy agreements are considered lawful.
Explanation: Ohio statutes governing artificial insemination “do not deal . . . with surrogate motherhood.” Although the state’s case law on surrogacy is lengthy, it has not completely settled the issue.
In 1992, an Ohio Court of Appeals denied custody to the intended mother in a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg) because she had no biological tie to the child and because the contract was an oral agreement. The Court did not discuss how it would have ruled if the case contained a written contract, but it did conclude that the legality of surrogacy agreements in Ohio is “unsettled and open to considerable scrutiny.”
Contributing some of the genetic material strengthens a custody case brought in Ohio by the intended parents in a surrogacy agreement. In 1994, a lower Ohio court held that the intended parents in a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg) were the natural and legal parents of the resulting child. However, the court noted that “as a matter of public policy, the state will not enforce or encourage private agreements or contracts to give up parental rights.” Because the decision came from a lower court, the language is not binding on other courts.
An Ohio Court of Appeals held in 1999 that it was in the best interests of a child conceived through a traditional surrogacy arrangement to use genetic testing to determine parentage. Two couples had created a written agreement under which the wife of one couple was to be inseminated by the husband of the other couple and relinquish custody of the child to the biological father and his wife after the birth. The surrogate mother reneged on the agreement, and invoked a state statute establishing that a child born from artificial insemination to a married woman is the natural child of her husband. The Court held that the statute contemplated a procedure performed by a physician utilizing an anonymous sperm donor and did not apply in this case.
In the 2001 case of Decker v. Decker, a man who entered into an oral agreement with his sister to carry a child for him and his same-sex partner. The sister was inseminated by an anonymous donor, but during the pregnancy began to have doubts about the arrangement. The Court determined that the surrogate was the legal mother of the child for the following reasons: (1) the child had no biological connection to the same-sex couple; (2) there was no written agreement or certification of the verbal agreement by a family agency or court; and (3) biological parents may be denied custody only in the case of abandonment, valid contractual relinquishment of custody, or total inability to provide care or support. The Court explicitly held that even if a determination is made that a biological parent has forfeited his/her rights or that custody would be detrimental to the child, the burden is still on the party seeking parental rights to prove, by a preponderance of the evidence, that it would be unsuitable to grant custody to the biological parent. The Court even found it possible “for a parent to contractually relinquish their rights to custody and still reacquire custody based on the non-parent's inability to show parental unsuitability.” However, nowhere in the decision did the court discuss the adoptive parents' sexual orientation as an issue in the decision. In fact, the judge's opinion outlines how the brother's partner might have gone about adopting the child had the surrogacy arrangement been legitimate. Thus, it seems that the potential for same-sex couples in Ohio to use surrogacy arrangements exists, provided the contracts are entered into legally.
In 2007, the Ohio Supreme Court held that a particular gestational surrogacy contract in question did not violate public policy, even when it prohibited the gestational surrogate from asserting parental rights. The Court reasoned that the gestational surrogate had no claim to legal parentage at the time of the agreement, and therefore she had no parental rights to assert.
Citations: OHIO REV. CODE ANN. § 3111.89 (2009); In re Adoption of Doe, 719 N.E.2d 1071, (Ohio Ct. App., 1998). Belsito v. Clark, 644 N.E.2d 760 (Ct. Com. Pl. 1994); Decker v. Decker, 2001 Ohio App. LEXIS 4389 (Ohio Ct. App. 2001); J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007); Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992); Turchyn v. Cornelius, 1999 Ohio App. LEXIS 4129 (Ohio Ct. App. 1999);
Oklahoma Surrogacy Law
Summary: Oklahoma has no statutes that directly address surrogacy, but an Attorney General opinion indicates that compensated surrogacy agreements run afoul of state’s law against “trafficking in children.” However, uncompensated surrogate agreements or agreements that only provide compensation for medical and other basic expenses may be permitted. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Oklahoma law prohibits the “acceptance, offer or payment of compensation in connection with the transfer of legal or physical custody or adoption of a minor child.” In 1983, the Oklahoma Attorney General concluded that surrogate parenting contracts that provide compensation for the adoption of a child violate state law prohibiting trafficking in children. Still, Oklahoma adoption law permits the payment of reasonable medical expenses for the birth mother and the minor to be adopted, and it is possible that such reimbursement would be legal in the context surrogacy of a surrogacy agreement.
Citations: 10 OKLA. STAT. § 7505-3.2 (2009); 21 OKLA. STAT. § 866 (2003); Office of the Att’y Gen. of the State of Okla. No. 83-162 (Sept. 29, 1983), 1983 Okla. AG LEXIS 41.
Oregon Surrogacy Law
Summary: Oregon surrogacy law appears to allow only uncompensated surrogacy arrangements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: The Oregon statute prohibiting “buying or selling a person” has an explicit exemption for “fees for services in an adoption pursuant to a surrogacy agreement.” This appears to codify the conclusion of a 1989 opinion issued by the Attorney General, which indicated that the state may invalidate any agreement in which money is exchanged for the right to adopt a child (particularly when the birth mother contests it). The case law confirms that if a surrogate mother is compensated for her consent to adoption under a surrogacy contract, the contract is unenforceable. Regardless, it appears that the courts will uphold a surrogacy arrangement in which the compensated surrogate mother would have carried the baby with or without payment. In one 1994 case, an Oregon Court of Appeals upheld an uncontested surrogacy arrangement, refusing to invalidate the agreement even though payment to the surrogate mother exceeded her pregnancy-related expenses. The Court emphasized that the facts indicated the surrogate would have entered into the agreement even without compensation and that she was not seeking to withdraw her consent for the adoption of the child. However, this case was decided before the statutory provision discussed above was passed by the legislature.
Citations: OR. ADMIN. R. 413-120-0200(3) (2009); In the Matter of the Adoption of Baby A and Baby B, 877 P.2d 107 (Or. Ct. App. 1994); 46 Op. Atty. Gen. Ore. 221 (April 19, 1989), 1989 Ore. AG LEXIS 26.
Pennsylvania Surrogacy Law
Summary: Pennsylvania surrogacy law is ambiguous. It appears that a compensated surrogacy agreement would be held unenforceable; however, an arrangement established through a legally recognized agency seems to be legal. The validity of informal arrangements is even less certain.
Explanation: The 1997 case of Ruth F. v. Robert B., Jr. did not involve a surrogacy contract, but rather it involved a paternity dispute (apparently between the current husband and his wife’s extramarital sexual partner) and the allocation of parental support duties. The Pennsylvania Superior Court observed that the husband attempted to make a deal with the other man to obtain property in exchange for continued support of the child. In condemning this action as “odious and demeaning to the nature of child care and responsibility,” the Court referenced a New Jersey case, In re Baby M. , which deemed compensated surrogacy contracts invalid under that state’s laws. The Court concluded, “[w]e do not tolerate purchasing children for adoption and the bargaining over parenting rights and duties . . . in exchange for financial consideration is reprehensible. Any agreement reached thereby would have been unenforceable.”
Another 1997 case, Huddleston v. Infertility Center of America, involved a negligence action brought against a fertility clinic. Implicit in the decision was that the surrogacy arrangements executed through this particular agency were permissible under Pennsylvania law.
The 2006 case of J.F. v. D.B. involved a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg) between a woman and a gay man. The Pennsylvania Superior Court reversed the ruling of a lower court that granted custody to the surrogate. The Court found that the surrogate mother did not have standing to seek custody of the triplets. However, the Court explicitly refrained from ruling on the validity of surrogacy agreements by stating, “That task is for the legislature.”
Citations: In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195, (Pa. 2002); Huddleston v. Infertility Ctr. of Am., 700 A.2d 453 (Pa. Super. Ct. 1997); J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006); Ruth F. v. Robert B., Jr., 690 A.2d 1171 (Pa. Super. Ct. 1997).
Rhode Island Surrogacy Law
Summary: Rhode Island law does not directly address surrogacy, but it appears to approve of at least some forms of surrogacy. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: The state statute prohibiting human cloning has an explicit exception for the assisted reproductive technologies used in gestational surrogacy. However, it should be noted that the Rhode Island legislature enacted a sunset clause, which states that the statute prohibiting cloning will expire on July 7, 2010.
Citations: R.I. GEN. LAWS §§ 23-16.4-2, 4 (2009).
South Carolina Surrogacy Law
Summary: There are no provisions in South Carolina law regarding surrogacy, but the limited case law indicates an acceptance of surrogacy contracts. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: A 2003 Federal District Court case did not directly deal with the validity of surrogacy agreements; instead it dealt with the status (with regard to an insurance policy) of a child born out of a surrogacy agreement. The husband of the surrogate sought coverage for the child under his insurance policy’s coverage of a “natural child.” The Court gave great deference to the terms of the surrogacy contract and the stipulations by the parties therein regarding the legal status of the adults and child involved. The Court found that the child was not the “natural child” of the surrogate’s husband, based largely on statements to that effect in the surrogacy contract. While the holding does not speak directly to the legitimacy of surrogacy arrangements in South Carolina, the Court clearly assumed that such an arrangement was not contrary to state law when it showed such deference to its terms.
Citations: Mid-South Ins. Co. v. Doe, 274 F.Supp.2d 757 (D.S.C. 2003).
South Dakota Surrogacy Law
Summary: There are no statutory provisions or published cases dealing with the issue of surrogacy.
Tennessee Surrogacy Law
Summary: Tennessee law appears to give surrogacy agreements legal consequence, but the law claims neither to approve nor forbid these agreements. It seems unlikely that the law will look favorably on a surrogacy agreement involving lesbian, gay, bisexual or transgender (LGBT) individuals because “surrogate birth” is defined by statute to occur only when the surrogate is gestating a fetus for a married couple.
Explanation: The Tennessee Code defines “surrogate birth” as one of two arrangements: (1) “[t]he union of the wife's egg and the husband's sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract;” (emphasis added) or (2) “[t]he insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father's wife to parent” (emphasis added). The law also states that under these agreements, no adoption formal by the biological parents is necessary. However, the Code also says that the aforementioned language “shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.”
In 1992, the Tennessee Supreme Court held that “in disputes as to embryos, any prior agreement would be honored.” This decision did not specifically address surrogacy, but the Court’s willingness to adjudicate a case involving embryos intended for surrogacy suggests that the judiciary approves of such contracts in Tennessee.
Citations: TENN. CODE ANN. § 36-1-102(48) (2009); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
Texas Surrogacy Law
Summary: Texas law explicitly allows gestational surrogacy agreements, but it appears to exclude same-sex couples.
Explanation: Surrogacy agreements are heavily regulated in Texas, and among the constraints on such agreements, the law requires the intended parents to be married to each other. The law also requires that a surrogacy agreement be validated by a court; otherwise, such an agreement would be unenforceable.
Citations: TEX. FAM. CODE ANN. §§ 160.754, 762.
Utah Surrogacy Law
Summary: Utah law explicitly allows gestational surrogacy agreements, but it also appears to exclude same-sex couples.
Explanation: Surrogacy agreements are heavily regulated in Utah, and among the constraints on such agreements, the law requires the intended parents to be married to each other. The law also requires that one of the intended parents be genetically related to the child and that surrogacy agreements must be validated by a court.
In the 2007 case of Jones v. Barlow, the Utah Supreme Court heard a case concerning two former domestic partners. When they were together, the couple decided to have a child, and one of the individuals was artificially inseminated. Eventually, the couple separated, and the partner who was not genetically related to the child brought this lawsuit seeking visitation rights. The Court held that the former partner had no standing to seek visitation because she was not genetically related to the child. Although this case was not about the legitimacy of surrogacy agreements, it does show that the Utah courts are unlikely to grant equal parental rights to LGBT individuals and couples. In fact, Utah law prohibits joint adoption by LGBT couples, and it also prohibits LGBT individuals from adopting the child of their same-sex partner.
Citations: UTAH CODE ANN. § 78B-15-801 to -809 (2009); UTAH CODE ANN. §78-30-1(3) (2009); Jones v. Barlow, 154 P.3d 808 (Utah 2007).
Vermont Surrogacy Law
Summary: It is not abundantly clear that Vermont law recognizes surrogacy agreements, but it appears that such agreements are lawful. Furthermore, it is likely that surrogacy agreements are available to lesbian, gay, bisexual and transgender (LGBT) individuals and couples in Vermont.
Explanation: There is no case law dealing directly with surrogacy, but at least one case indirectly indicated an acceptance of such agreements in Vermont. In the groundbreaking 1999 case that led to the creation of civil unions in Vermont, the state itself argued that restricting marriage to different-sex couples would serve the important goal of minimizing complications in surrogacy agreements. This suggests a basic acceptance of such agreements. Furthermore, in its holding the Court granted state-level benefits and responsibilities associated with marriage to same-sex couples, and such likely includes that acceptance of surrogacy.
It is legal in Vermont for same-sex couples to jointly adopt, as well as for individuals to adopt the children of their same-sex partner. Moreover, now that same-sex couples have the right to marry in Vermont, it would stand to reason that surrogacy agreements would be extended to these couples if they are considered enforceable at all in the state.
Citations: VT. STAT. ANN. tit. 15A § 1-102(b) (2009); Baker v. State, 170 Vt. 194 (Vt. 1999).
Virginia Surrogacy Law
Summary: Virginia law explicitly approves of uncompensated surrogacy, but it appears to exclude same-sex couples from participation in these arrangements.
Explanation: Virginia statutes impose numerous restrictions on surrogacy agreements, including limiting formation of such agreements to a surrogate and “intended parents” defined as “a man and a woman, married to each other.” Additionally, the law requires a circuit court order approving the agreement.
Citations: VA. CODE ANN. § 20-156 (2009).
Washington Surrogacy Law
Summary: Washington allows uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: Washington statutes specify that compensated surrogacy arrangements are void and unenforceable as against public policy. Furthermore, such agreements are punishable as a gross misdemeanor. The law recommends that should a custody dispute arise between the surrogate mother and the intended parents, a court should resolve the matter by utilizing a multi-pronged balancing test, largely based upon the child’s relationship with each parent. A parent-child relationship can be established by a valid surrogate parentage contract or an affidavit and physician’s certificate wherein an egg donor or gestational surrogate (a surrogate who has no genetic relationship to the child) sets forth her intent to be the legal parent of the child. A 1989 opinion from the Attorney General confirmed this assessment of state law, and it also indicated that a surrogate parenting agreement is not enforceable if the surrogate withdraws her consent to relinquish her child before a court has approved that consent.
In 2005, the Washington Supreme Court decided the case of In re Parentage of L.B. , which concerned a lesbian couple who separated after they had a child through artificial insemination. The Court determined that the partner who was not genetically related to the child had standing to argue that she was a de facto parent of the child. Although this case did not involve a surrogacy agreement, it shows that the Washington courts are willing to at least consider granting equal parental rights to LGBT individuals and couples.
Citations: WASH. REV. CODE § 26.26.101 (2009); WASH. REV. CODE §§ 26.26.210 et seq. (2009); 1989 Op. Wash. Att'y Gen. No. 4 (Feb. 17, 1989), 1989 Wash. AG LEXIS 41.
West Virginia Surrogacy Law
Summary: West Virginia has no laws directly addressing the legality of surrogacy contracts. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: State law prohibiting the purchase or sale of a child specifically mentions that “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother” are not prohibited by the statute. This wording suggests that surrogacy arrangements may be enforceable.
Citations: W. VA. CODE § 48-22-803(e)(3) (2009).
Wisconsin Surrogacy Law
Summary: Wisconsin law does not directly address the legality of surrogacy contracts; however, at least one court case has recognized the parental rights of someone who is not genetically related to their child. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In the Wisconsin statute pertaining to the collection of vital statistics, it states that the surrogate mother’s name is to be added to the birth certificate until “a court determines parental rights.” Once a court determines those rights, a new birth certificate with names of the intended parents may be issued; however, the statute does not lay out the factors a court should consider in making that decision.
In 1981, a Wisconsin Court of Appeals heard the case of L.M.S. v. S.L.S. , which featured an unusual set of facts: a husband, who was sterile, consented to the impregnation of his wife by another man (essentially, a surrogate father). Later, when the husband and wife were divorced, the husband argued that he was not responsible for child support because he was not the legal father of the child. The Court rejected this argument and cited numerous facts, such as the husband originally holding himself out to be the child’s father and the husband claiming the child as a dependent on income tax returns, as evidence that the husband was in fact the legal father of the child.
Citations: WIS. STAT. § 69.14(h) (2008); In Interest of Angel Lace M., 516 N.W.2d 678 (Wis. 1994); L.M.S. v. S.L.S., 312 N.W.2d 853 (Ct. App. 1981).