Alabama
Although the state of Alabama does not have any statutory law or published case law that expressly permits surrogacy, courts are typically favorable towards surrogacy arrangements. Pre-birth parentage orders will usually be issued to a single Intended Parent who is biologically related to the child, or to Intended Parents who are married when at least one shares a genetic connection to the child. Unmarried couples will typically be denied a pre-birth parentage order and must instead secure their parental rights through a stepparent adoption after the child is born and after they have married. Second-parent adoptions are prohibited in Alabama.
Relevant Statutory Law:
- Code of Ala. § 26-10A-12 (stepparent adoptions require the surrogate’s consent)
- Code of Ala. § 26-10A-27 (stepparent adoptions residency requirements)
- Code of Ala. § 26-17-702 (one who donates eggs or sperm to a married woman for the purpose of conceiving a child via surrogacy arrangement is not the legal parent; rather, the married couple is deemed the natural and legal parents of any resulting child)
Alaska
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, surrogacy is an accepted practice in the state and post-birth adoptions (second-parent and stepparent) are a common way for Intended Parents to secure their legal parental rights. Beginning in 2014, Alaska courts began granting pre-birth parentage orders to married heterosexual couples who used their own eggs and sperm (i.e., both Intended Parents share a genetic relationship with the child). It is unclear whether pre-birth orders will be granted under different circumstances (same-sex couples, unmarried couples, or where one or neither Intended Parent shares a genetic relationship with the child), and in such situations a post-birth adoption may be necessary.
Arizona
The State expressly prohibits surrogacy under Arizona Revised Statute § 25-218, thus making surrogacy contracts statutorily unenforceable. Nevertheless, following a 1994 Arizona court decision allowing the Intended Parents to rebut the presumption that the Gestational Carrier is the legal mother, Arizona courts began granting pre-birth parentage orders (while still maintaining that the underlying contracts are unenforceable). Pre-birth parentage orders are now likely to be granted when both the Intended Parents (whether married or unmarried) are genetically related to the child. When an egg or sperm donor is used and at least one of the Intended Parents is genetically related to the child, a pre-birth order may be possible, but results vary greatly by county and judge. When neither Intended Parent shares a genetic relationship to the child, a parentage order will not be possible, and a married heterosexual couple must instead wait until after the child’s delivery to file for a stepparent adoption. Second-parent adoptions are prohibited in Arizona, leaving same-sex couples with no genetic relation to the child with little to no recourse for securing their parental rights unless they go outside the state to obtain a second-parent adoption.
Arkansas
Gestational surrogacy is expressly permitted by statute, pursuant to Arkansas Code § 9-10-201. Pre-birth parentage orders are generally issued to married couples or single Intended Parents when at least one shares a genetic relationship to the child. For unmarried same-sex or heterosexual couples, only the Intended Parent who is biologically related to the child will be granted a pre-birth order and the non-biological Intended Parent must then complete a second-parent adoption outside the state to secure his or her legal parental rights. Stepparent adoptions are available to married heterosexual couples who are unable to obtain a pre-birth parentage order.
California
California expressly permits surrogacy arrangements. Having more statutory law and published case law on surrogacy arrangements than any other state, California is regarded as a highly surrogacy friendly state, both for heterosexual couples as well as for same-sex couples. Pre-birth and post-birth parentage orders are permitted and may be obtained regardless of the marital status or sexual orientation of the intended parent/s. Post-birth adoptions are also available to those who are unable to obtain a parentage order: if the couple is unmarried they may proceed with a second-parent adoption (requires home study and hearing) and if the couple is married they may proceed with a stepparent adoption (does not require home study or hearing).
Relevant Statutory Law:
- General Surrogacy Laws: California Family Code Sections 7960-7962, 7613
- Second-Parent Adoptions: California Family Code Sections 8800-8823
- Stepparent Adoptions: California Family Code Sections 9000-9007
Case Law in Support of Surrogacy Arrangements:
- Johnson v. Calvert (1993)
- In re Marriage of Buzzanca (1998)
Colorado
Colorado has no statutory law or published case law that prohibits surrogacy and Colorado courts are typically favorable towards surrogacy arrangements. Pre-birth parentage orders are commonly issued in the state regardless of the genetic relationship (or lack thereof) to the child and regardless of whether the Intended Parent/s are single or a couple, married or unmarried, same-sex or heterosexual. Second-parent and stepparent adoptions are permitted, but are usually unnecessary in surrogacy arrangements due to the high availability of pre-birth parentage orders.
Connecticut
Conn.Gen.Stat.§7-48a permits gestational surrogacy and expressly requires that the Intended Parents be named on the birth certificate as the child’s legal parents. Following a 2011 Connecticut Supreme Court decision holding that Vital Records may not refuse to list a non-biological parent on a birth certificate, pre-birth parentage orders are typically granted in most instances (including when the Intended Parent/s is/are any combination of the following: single or a couple, married or unmarried, heterosexual or same-sex, and regardless of biological relationship to the child). Only in traditional surrogacy arrangements are pre-birth orders typically not allowed. When a parentage order is unable to be obtained, second-parent and stepparent adoptions are allowed.
Delaware
Gestational surrogacy is expressly permitted by statute and the requirements and enforcement of surrogacy arrangements are specifically and clearly established in Delaware Code § 8-801 through 8-810, which became effective in 2013. Pre-birth parentage orders are commonly granted, and are available to any Intended Parent, whether they be single or a couple, married or unmarried, or genetically related to the child or not. Same-sex Intended Parents are treated like any other heterosexual parent in Delaware. If a parentage order is unable to be obtained (e.g., in the case where the surrogate resides in a state that does not permit pre-birth orders), then Delaware allows for second-parent and stepparent adoptions.
Florida
Surrogacy is permitted by statute, but gestational surrogacy contracts will not be enforceable unless the Intended Parents are married and all parties to the contract are 18 years of age or older, pursuant to Florida Ch. 742.15 FL Stat. Pre-birth parentage orders are suggested, but not required, to be filed once the pregnancy reaches the second trimester, but are typically only available to married couples (same-sex or heterosexual) where at least one Intended Parent shares a genetic relationship with the child. If neither Intended Parent shares a genetic relationship with the child, or in traditional surrogacy arrangements where the surrogate shares a biological relationship with the child, a post-birth adoption must be completed in order to terminate the surrogate’s parental rights and establish that of the Intended Parents’, pursuant to Fla. State § 63.213. Florida permits stepparent adoptions as well as adoptions by single Intended Parents (i.e., similar to second-parent adoptions where unmarried individuals may adopt a resulting child).
Georgia
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Georgia courts will typically uphold surrogacy agreements and pre-birth parentage orders are usually granted in most circumstances, including when the Intended Parent/s are a same-sex or heterosexual couple, a single Intended Parent, and/or when neither Intended Parent shares a genetic relationship with the child.
Hawaii
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Intended Parents who share a genetic relationship with the child will typically be able to obtain a post-birth parentage order (pre-birth parentage orders are not permitted in Hawaii). Any Intended Parent who is not genetically related to the child will be required to complete a post-birth adoption to secure his or her legal parental rights: a married couple may complete a stepparent adoption, an unmarried couple may complete a second parent adoption (although results may vary by county and judge), and a single Intended Parent (who used a sperm and/or egg donor) must complete a full adoption.
Idaho
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, there is one published court decision that deals with surrogacy arrangements in the state, issued in 2016, which held that any Intended Parent who is not genetically related to the child will not be issued a post-birth parentage order, but instead must complete a post-birth adoption in order to obtain legal parental rights over any resulting child. Thereby, post-birth parentage orders will generally be granted to Intended Parents who share a genetic connection with the child. Pre-birth parentage orders, however, are not available in Idaho – regardless of genetic connection to the child. Stepparent adoptions are available to Idaho residents, whether married or unmarried, when at least one of the Intended Parents is genetically related to the child. If no Intended Parent shares a genetic relationship with the child, then a full adoption must be completed.
Illinois
Illinois has some of the most comprehensive and detailed statutory provisions in the country that address surrogacy, codified together as Illinois Gestational Surrogacy Act,750 ILCS 47/1 – 47/75. The Act expressly permits gestational surrogacy, sets forth the specific contractual requirements for an enforceable agreement, establishes the legal parental rights of the Intended Parent/s over any resulting child, and – most notably – provides that any Intended Parent/s who comply with and satisfy the statutory requirements are required to be named on the child’s birth certificate, thus bypassing the need for court action to obtain parental rights. Therefore, pre- and post-birth parentage orders are typically unnecessary, but still available, where the Intended Parents and Gestational Carrier enter into a valid surrogacy contract and where at least one of the Intended Parents is genetically related to the child. However, a parentage order must be secured for international intended parents in order for their parental rights to be recognized and honored in their home country. Second-parent and stepparent adoptions are also permitted in Illinois and heterosexual and same-sex couples are treated alike in all regards.
Indiana
Indiana Code 31-20-1-1 makes gestational and traditional surrogacy contracts void and unenforceable as against public policy. However, some courts have begun issuing pre-birth parentage orders in certain and limited instances, but typically, no pre-birth parentage order may be granted unless medical documentation is provided confirming that the child is genetically related to both of the Intended Parents (meaning that no egg or sperm donor was used). Second-parent and stepparent adoptions are permitted in the state.
Iowa
Iowa Code 710.11 and 641-99.15 implicitly permit surrogacy and Iowa courts are usually favorable towards surrogacy arrangements. However, only partial pre-birth parentage orders are granted, and are only available to Intended Fathers (not mothers!) who are genetically related to the child. A non-genetic Intended Parent (Father or Mother) will be required to complete a post-birth adoption process to secure his or her parental rights, while a genetically related Intended Mother may file for a post-birth parentage order. Intended Parents will also need to terminate the surrogate’s, and the surrogate’s husband’s (if applicable), parental rights.
Kansas
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Kansas courts will usually grant a pre-birth parentage order to an Intended Parent who is genetically related to the child. An Intended Parent who is not genetically related to the child, but who is married to the genetic Intended Parent, must then complete a stepparent adoption to secure his or her parental rights. Second-parent adoptions are not permitted in Kansas and so unmarried non-genetic Intended Parents will be required complete a post-birth adoption outside the state.
Kentucky
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, pre-birth parentage orders will usually be granted to Intended Parents who are married when at least one shares a genetic relationship with the child, and to single Intended Parents who are genetically related to the child. Unmarried couples, regardless of genetic relationship to the child, as well as non-genetic Intended Parents will typically be required to complete a post-birth adoption in order to secure their parental rights.
Louisiana
Louisiana Surrogacy Bill HB 1102 (effective August 1, 2016) legalized gestational surrogacy arrangements but only in the limited instance where the Intended Parents are Louisiana residents and are a married heterosexual couple who are both genetically related to the child (i.e., neither a sperm or egg donor was used). In addition, there are also statutory provisions in place that establish specific and extensive contractual requirements and limitations that must be complied with in order for a surrogacy contract to be enforced, and lack of compliance with such provisions risks subjecting all parties to criminal and civil penalties (fines up to $50,000 and/or imprisonment up to 10 years).
Maine
Maine Parentage Act Title 19A Chapter 61, effective July 1, 2016, permits surrogacy, and pre-birth parentage orders can readily be obtained in nearly all gestational surrogacy situations.
Maryland
In re Roberto d.B. (2003) implicitly permits surrogacy, and pre-birth orders are available to any Intended Parent in nearly any circumstance. If a parentage order is unable to be obtained, post-birth adoptions are permitted and available to married and unmarried couples alike.
Massachusetts
Hodas v. Morin, Culliton v. Beth Israel Deaconess Med. Ct., and R.R. v. M.H., all permit surrogacy, and pre-birth parentage orders can be obtained by Intended Parents where at least one of them shares a genetic connection with the child.
Michigan
Michigan Surrogate Parenting Act MCL Section 722.851, declares surrogacy contracts to be void and unenforceable as against public policy. However, courts may still grant pre-birth orders if no payment or compensation has been made to the surrogate by the Intended Parent/s. Post-birth adoptions are permitted by a single person or by a married couple, but Michigan does not permit two unmarried people to adopt (i.e., no second-parent adoptions are allowed).
Minnesota
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, it may be possible to obtain a pre-birth order in certain counties and in certain scenarios, with results varying greatly by judge. Stepparent adoptions are permitted in the state and may be obtained by heterosexual or same-sex married or unmarried couples.
Mississippi
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Mississippi courts are prone to granting pre-birth orders, especially when at least one intended parent is genetically related to the child. If neither intended parent is genetically related to the child, a pre-birth order is still possible, with results varying by county. Post-birth adoptions are also available in the state.
Missouri
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, it may be possible to obtain a post-birth order. Although pre-birth orders are not issued in Missouri prior to delivery, a parentage order may be filed prior to delivery and will become effective soon after the child is born. Post-birth orders are most likely to be granted to single intended parents or married intended parents when at least one of them is genetically related to the child. For same-sex or unmarried couples or when neither intended parent is genetically related to the child, it may still be possible to obtain a post-birth order but results vary by county and judge.
Montana
The state of Montana does not have any statutory law or published case law that expressly permits or prohibits surrogacy. Nevertheless, Montana courts are typically favorable towards surrogacy agreements, and pre- or post-birth parentage orders will usually be granted when at least one of the Intended Parents shares a genetic relationship to the child. These determinations, however, are left to the judge’s discretion, and so results may vary by county and judge. Although parentage orders may be obtained by a married or unmarried couple, or by a single Intended Parent, an unmarried Intended Parent who is not genetically related to the child may have a harder time securing parental rights. Second-parent adoptions (for intended parents who are unmarried) and stepparent adoptions (for intended parents who are married) are also available.
Relevant Statutory Law:
- MCA 40-6-106 (artificial insemination)
- MCA 40-5-235 (parentage orders)
- MCA 40-4-302 (stepparent adoptions)
Nebraska
R.R.S. Neb. 25-21, 200 declares surrogacy contracts to be void and unenforceable, however the language of the statute does allow surrogacy practice in limited scenarios. Pre-birth parentage orders are prohibited in the state of Nebraska, but courts may grant post-birth orders to biological fathers, and biological fathers only. All other Intended Parents must go through a post-birth adoption process. Stepparent adoptions are permitted in the state, while second-parent adoptions are not.
Nevada
Nev. Revised Statutes 126.500-126.810 expressly permits gestational surrogacy; and pre-birth parentage orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
New Hampshire
N.H.Rev.Stat.Ann. 168-B expressly permits gestational surrogacy; and pre-birth parentage orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
New Jersey
Gestational surrogacy is expressly permitted pursuant to the New Jersey Gestational Carrier Agreement Act of 2018. Prior to the Act, compensated surrogacy arrangements were prohibited in the state and held unenforceable pursuant to A.H.W. and P.W. v. G.H.B (2000), and In re T.J.S. (2012). Now, pre-birth parentage orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
New Mexico
N.M. Stat. Ann. 40-11A-801 explicitly states that gestational surrogacy contracts are neither permitted nor prohibited. However, pre-birth parentage orders can be obtained by nearly any Intended Parent in any circumstance, with the exception of single Intended Parents who may have trouble obtaining a parentage order depending on the judge.
New York
New York Code Section 8-122 declares surrogacy contracts to be void and unenforceable, as against public policy. However, uncompensated gestational surrogacy agreements, although unenforceable, are not illegal nor prohibited. Only in situations involving altruistic gestational surrogacy arrangements may Intended Parents be capable of obtaining a parentage order; and in such cases, a pre-birth order will only be granted to a married or unmarried heterosexual couple that does not use any egg or sperm donors (i.e., both Intended Parents are genetically related to the child) or to a single Intended Parent who is genetically related to the child.
North Carolina
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, it may be possible to obtain a pre-birth order in certain counties, and in certain scenarios. Stepparent adoptions are also available in North Carolina, while second-parent adoptions are not.
North Dakota
N.D. Cent. Code 14-18 expressly permits gestational surrogacy; and pre-birth parentage orders can readily be obtained by most Intended Parents in most circumstances if at least one of the Intended Parents is genetically related to the child. If neither Intended Parent is genetically related to the child, it is possible but unclear whether a pre-birth order will be granted. Stepparent and second-parent adoptions are available for those who are unable to obtain a parentage order.
Ohio
J.F. v. D.B., 879 N.E.2d 740 (2007) permits gestational surrogacy; and pre-birth parentage orders can be obtained by any Intended Parent in most circumstances, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child. Results vary, however, by judge and county.
Oklahoma
The Oklahoma Gestational Agreement Act (House Bill 2468), which became effective May 15, 2019, legalized gestational surrogacy and established the framework for such contracts’ enforceability as well as the conditions in which pre-birth parentage orders are to be granted. A pre-birth parentage order may be obtained by a single Intended Parent or by a married couple, regardless of the Intended Parent’s genetic connection to the child, but the gestational carrier agreement must first be validated by the court prior to any embryo transfer.
Oregon
There are no statutes or published case law specifically permitting or prohibiting surrogacy in the state. However, surrogacy is an accepted way to build one’s family in Oregon and pre-birth parentage orders are usually granted when at least one of the Intended Parents shares a genetic connection with the child (a pre-birth order may still be granted when neither Intended Parent is genetically related to the child, but results vary by county). If neither of the Intended Parents is genetically related to the child, an action for a second-parent or stepparent adoption may be filed to secure their parental rights so long as the adopting parent, the surrogate, or the child has resided in the state for at least 6 months prior.
Relevant Statutory Law:
- ORS 109.239-109.247 (establishes the rights and responsibilities of the child resulting from assisted reproduction and of the donor of eggs, sperm or gametes, if used)
Pennsylvania
There are no statutes or published case law specifically permitting or prohibiting surrogacy, however, there is unpublished case law that permits surrogacy: J.F. v. D.B., 897 A.2d 1261 (2006) and Whitewood v. Wolf, no. 1:13-cv-1861 (2014). It may be possible to obtain a pre-birth order in certain counties, and in certain scenarios, but results vary substantially by county and by judge. Post-birth adoptions, whether by stepparent or second parent, are also available in Pennsylvania.
Rhode Island
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, surrogacy is an accepted practice in Rhode Island and there is a degree of predictability in dealing with surrogacy cases because all surrogacy petitions are heard by the Chief Judge of Family Court in Providence. Pre-birth parentage orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
South Carolina
Mid-South Ins. Co. v. Doe, 274 F.Supp.2d 757 (2003) suggests gestational surrogacy contracts are permissible and enforceable. Pre-birth parentage orders can be obtained by most Intended Parents, whether married or unmarried, and even if neither Intended Parent is genetically related to the child. Results may vary by county and judge in regards to pre-birth petitions filed by same-sex couples.
South Dakota
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, pre-birth parentage orders can nevertheless be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child. Post-birth adoptions are also available.
Tennessee
Tenn. Code Ann. 36-1-102(48) neither permits nor prohibits surrogacy, but merely defines it. A pre-birth order is only possible when at least one of the Intended Parents shares a genetic connection with the child. Only the genetically related Intended Parent will be named on the parentage order, however, and the non-genetic Intended Parent will thereby be required to complete a second-parent or stepparent adoption after the child is born.
Texas
Tex. Fam. Code 160-751 through 160-763 permits gestational surrogacy arrangements and sets forth the requirements for a valid and enforceable surrogacy contract. Pursuant to the applicable statutes, a pre-birth order may be granted so long as the gestational carrier agreement is first found to by a Texas court to be in compliance with the statutory requirements and is thereby validated. Although the statute only refers to married Intended Parents, some courts may nevertheless grant pre-birth parentage orders to unmarried Intended Parents, regardless of genetic connection to the child.
Utah
Utah Code Ann. 78B-15-801 (2008) permits gestational surrogacy for married Intended Parents, and pre-birth parentage orders can be obtained by any married Intended Parent regardless of his or her genetic connection to the child.
Vermont
The Vermont Parentage Act of 2018 specifically permits gestational surrogacy; and pre-birth parentage orders can readily be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child.
Virginia
Virginia’s Assisted Conception Statute, entitled the Status of Children of Assisted Conception Act, permits surrogacy and upholds the enforceability of any surrogacy contract that complies with the statutory requirements therein. However, instead of filing for a pre- or post-birth parentage order, Intended Parents can only establish their legal parental rights through one of two ways: either through the court-approved model, or the non-court approved model. The court-approved model requires the court’s pre-approval prior to the surrogate’s IVF cycle, a home study, and a court hearing. The non-court model requires the Intended Parents to file a Surrogate Consent and Report form with the Birth Registrar at least three days following the child’s birth.
Washington
As of January 1, 2019, an updated and amended version of the Washington Uniform Parentage Act was enacted, which now permits compensated gestational surrogacy as well as traditional surrogacy arrangements that comply with the respective statutory framework. Under the updated and amended Act, pre-birth parentage orders are also now available in gestational surrogacy cases to any Intended Parent, regardless of marital status, genetic connection to child, or sexual orientation, so long as the gestational carrier agreement complies with the statutory requirements.
West Virginia
W.VA Code 61-2-14h(e)(3) permits gestational surrogacy; and pre-birth parentage orders will be issued in most instances, even if neither Intended Parent is genetically related to the child, with results varying by county and judge.
Wisconsin
Paternity of F.T.R., Rosecky v. Schissel (2013) expressly permits traditional surrogacy and in practice, implicitly permits gestational surrogacy. Surrogacy contracts will be upheld so long as they are not contrary to the child’s best interest. Pre-birth parentage orders can be obtained in certain counties and in certain situations, however post-birth orders are also required.
Wyoming
WY Stat 14-2-403(d) neither permits nor prohibits surrogacy. Surrogacy in Wyoming is rare due to practical considerations. Consequently, there is insufficient data to determine how a Wyoming court may rule on a parentage order or on what prospective Intended Parents may anticipate in their surrogacy process.