Is Paid Surrogacy Legal?

The first surrogacy contract was written in 1980, it was a traditional surrogacy case and the first case in which the courts favored the intended parents and upheld the surrogacy contract. It was five years after that we saw the birth of gestational surrogacy.

Surrogacy is the practice by which a woman becomes pregnant with the intention of the baby being given to ‘intended parents’. There are most specifically two types of surrogates, the first traditional surrogacy is where the surrogate has her own egg fertilized and therefore does carry a genetic link to the baby and the second is Gestational surrogacy where the surrogate, through means of Invitro fertilization is implanted with an embryo that carries no genetic link to her.

While Surrogacy is an evolving practice, the question of surrogacy’s legality is not a simple one to answer. While surrogacy in some form is legal through all US states, the status of which surrogacy is legal varies quite vastly from state to state, as most American legislation does.

In many US states surrogacy is permitted, some with more favorable surrogacy laws then others. As surrogacy becomes more widely accepted the number of states that develop the legal framework to embrace the surrogacy process begins to expand, after Washington and New Jersey’s recent legislations allowing surrogacy as an accepted practice that only leaves Michigan, and New York where paid surrogacy is not permitted in any form and can be subject to criminal sanctions should surrogacy be practiced.

These documents are an essential part of every surrogacy arrangement in the United States, they set out the legal parents of the child as well as relieve the surrogate of any obligations for the baby. These orders are, in simple terms, a document that sets out the parentage of the baby. Different states require different orders depending on both laws and the venue under which they are accessing the system. These orders are not effective until after the birth of the baby but can often give peace of mind to the intended parents. The main difference between the two orders is when you can apply for them, with pre-birth orders you can start them in the 4^th month of pregnancy, whereas, with post birth orders they cannot be applied for until day 3 or 5 after the baby is born.

Referred to as the Golden States because they have the most permissive and progressive legal framework for surrogacy.  The legislation in these states protect both the intended parents and the surrogate. They allow for intended parents to hire a woman as their surrogate, establish the intended parent’s parentage before birth which in turn allows the surrogate to be released from any parental obligations upon birth of the child. These states also have the framework in place for the intended parent’s names to be on the birth certificate as well. Because of this legal framework these states attract intended parents from all over the world who are seeking the help of a surrogate to help complete their family.

Those wishing to access surrogacy do not have to go to the golden states to be able to use a surrogate to help create their family. Many states allow surrogacy but may pose limitations on who can use a surrogate based on such things as the genetic link to the baby, sexual orientation and in some states marital status. However, with an attorney who is familiar with the law and able to navigate the system prospective parents can find hope in these states and have successful surrogacy journeys leading to the creation of their family.

In Pennsylvania, Maryland, New Mexico, Wyoming and West Virginia, surrogacy is accepted and permitted, however the process will vary based on conditions and the legal venues under which you are accessing the system, but the courts are favorable in these states as long as you meet the conditions of the state.

There are also states in the country which allow surrogacy by default, merely because there is no legal framework or case laws to rely on. Within these states, while surrogacy is legal it is important to have a 3^rd party reproductive attorney to navigate these systems to ensure a seamless journey from start to finish. Most states fall under this vacuum. Georgia, Colorado and Kentucky pose the least amount of restrictions, whereas the rest will award parentage or post-birth parentage restrictions based on one or more of the following: genetic link to the baby, marital status and sexual orientation. In these states it is vitally important to understand the laws of the state you are working under and have the right attorney who knows how to navigate them to ensure you meet the legal requirements of the state.

In these states, while surrogacy is not illegal the courts and legal framework does not always uphold surrogacy contracts which could lead to the right of parentage for the intended parents in a state of flux with their parentage in question. Surrogacy contracts are often not upheld in these states.