(Disclaimer: This is meant to be a general overview of state laws and practice as it pertains to surrogacy in the United States, as collected by LPG and provided and/or confirmed by at least one attorney in the ART field who is licensed in the state noted. It is understood that the law may be nuanced and therefore different interpretations of statutes or case law and differing customary practices may exist in a state. This is for educational purposes only, and should not be construed as legal advice, nor does it create any attorney-client relationship with ASRM - LPG or any member thereof. The information is deemed to be current as of the “updated” date listed, but all are to be mindful that this is a rapidly-evolving area of the law in many jurisdictions, and all information and laws are subject to change. Any state listed as “update pending” has been unable to be verified since prior to 2024. All are advised to use this as a “starting point” but to reach out to an ART Attorney licensed to practice law in the state in which you are seeking information, to further discuss relevant laws, interpretations, custom and usage, and any changes that may have occurred.)
Alabama
Alabama expressly permits the practice of surrogacy. Section 26-17-801 of the Alabama Code has been expressly reserved for “future implementation of the Uniform Parentage Act” addressing surrogacy. Moreover, the State of Alabama has excluded payments to a surrogate from the prohibition of payments under the adoption code (see Ala. Code § 26-10A-34 (c) (2019). Recent additions to the Alabama Code allow for maternity to be proven by birth or through an adjudication. Ala. Code § 26-17-201(a) (2019) (outlining how maternity is determined). Pre-birth parentage orders will usually be issued to a single Intended Parent, or to Intended Parents who are married. Unmarried Couples can only obtain a pre-birth parentage order for one of the parents and then subsequently file for a stepparent adoption once they are married. Second-parent adoptions are prohibited in Alabama. There are no requirements in the law that require that the embryo utilized in a surrogacy be genetically related to the Intended Parent(s). In fact, § Ala. Code 26-17-702 provides that a married couple who has a child created from donated sperm, eggs, or “both” under the supervision of a licensed physician are the legal parents of that child. The comments to that law extend this to single intended parents as well. It is important to note that on February 16, 2024, in LePage v. The Center for Reproductive Medicine, the Alabama Supreme Court held that embryos are children for purposes of the Wrongful Death of a Minor Act, §6-5-391, Ala. Code 1975. Very quickly thereafter, the Alabama legislature passed and the governor signed into law SB 159 which provides immunity against civil or criminal action for any individual or entity when providing or receiving services related to in vitro fertilization.
(Updated April 2024)
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.
(Update pending)
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 routinely granted when both the Intended Parents (whether married or unmarried) are genetically related to the child. They are also granted when an egg or sperm donor is used and at least one of the Intended Parents is genetically related to the child AND the Intended Parents are married. Post-birth orders are possible and recommended. When neither Intended Parent shares a genetic relationship to the child, a parentage order will not be possible, and an individual or married couple must instead wait until after the child’s delivery to file for an adoption. Second-parent adoptions are prohibited in Arizona, leaving unmarried couples with no genetic relation to the child with little to no recourse for securing parental rights for both of them unless they secure parental rights for one of them in Arizona via a private adoption and then they go outside the state to obtain a second-parent adoption.
(Updated April 2024)
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 where at least one is a genetic parent. For unmarried same-sex or heterosexual couples, only the genetic intended parent will be granted a pre-birth order whereas the non-genetic intended parent must then complete a second-parent adoption outside the state to secure their legal parental rights. Stepparent adoptions are available to married heterosexual couples who are unable to obtain a pre-birth parentage order.
(Updated July 2024)
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 and regardless of whether they used their own gametes or donated sperm and/or eggs. 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). (See: 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)).
(Updated July 2024)
Colorado
Gestational surrogacy is expressly permitted by statute and the requirements and enforcement of surrogacy arrangements are specifically and clearly established in Colorado Revised Statutes, §19-4.5-101 et. seq. So long as the parties comply with the statutory requirements, pre-birth parentage orders are 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. If the parties have not complied with the requirements in the statute, a court may determine parentage based on the parties’ intent. Second-parent and stepparent adoptions are permitted, but are usually unnecessary in surrogacy arrangements due to the availability of pre-birth parentage orders.
(Updated July 2024)
Connecticut
The Connecticut Parentage Act (2022), C.G.S. Section 46b-450 et. seq. permits gestational surrogacy and sets forth the requirements for a gestational surrogacy agreement as well as the procedures for the petition for a pre-birth or post-birth judgment of legal parentage. Following a 2011 Connecticut Supreme Court decision (Raftopol v. Ramey, 299 Conn. 681, argued by Attorney Victoria Ferrara for the Intended Parents), holding that the CT Registrar of Vital Statistics may not refuse to list a non-biological parent on a birth certificate, the law of this case was codified by the Connecticut Parentage Act. Section 46b-454 provides that jurisdiction for surrogacy parentage judgments rests with the CT Probate Court. The requirements for surrogacy agreements are set forth in Sections 46b-523 and 46b-524; and Section 46b-531 provides the requirements and procedure for the petition for a judgment of parentage. C.G.S. Section 7-48a provides that, with a judgment of parentage as per Section 46b-531, the CT Registrar of Vital Statistics shall name the intended parent or parents under the gestational agreement as the parent or parents of the child on the Child’s birth certificate. Providing there is compliance with the statutory requirements, pre- birth parentage orders are granted (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/genetic relationship to the child). The Connecticut Parentage Act also allows for and incorporates the legal process for genetic (traditional) surrogacy. Second-parent and stepparent (confirmatory) adoptions are allowed for residents of Connecticut.
(Updated April 2024)
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.
(Update pending)
Florida
Surrogacy contracts are enforceable in Florida. Florida Statutes sections 742.15 and 63.213 govern surrogacy agreements. Section 742.15 specifically applies to married couples who are unable to physically gestate themselves and use genetic material from at least one parent. Section 63.213 governs surrogacy for single persons, unmarried couples, and those without any genetic relationship to an embryo. The statute also permits traditional surrogacy. In a traditional surrogacy arrangement, the surrogate has 48 hours to rescind her consent to adoption. While pre-birth orders can be obtained prior to birth, these are not legal declarations of parentage. Instead, these orders are used to authorize access and make medical decisions at the hospital. A petition for post-birth order needs to be filed within 72 hours of delivery. The Florida Bureau of Vital Statistics honors Florida court parentage orders and will prepare an amended birth certificate.
(Updated April 2024)
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.
(Updated April 2024)
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 either a full adoption or paternity case.
(Updated March 2024)
Idaho
Gestational surrogacy is now expressly permitted by statute in Idaho (Idaho Code 7-1601 et seq.). The law provides for recognition of gestational agreements if they meet certain statutory requirements and are validated by the court. Validation must occur prior to birth or within 7 days of birth. After an agreement is validated by the court (the PBO) and the birth of the child occurs, a notice of birth is filed with the court and the court will issue a final order of parentage declaring the intended parent(s) as the legal parent(s) of the child and ordering vital records to issue a birth certificate with the intended parent(s) name(s). Idaho will recognize one or two intended parents, regardless of biological connection to the child, marriage of intended parents is not required. This law eliminates the need for any non-biological parent to complete any form of adoption or parentage in their home country or state to be recognized on the Idaho birth certificate.
(Updated March 2024)
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.
(Updated April 2024)
Indiana
Indiana Code 31-20-1-1 makes gestational and traditional surrogacy contracts void and unenforceable as against public policy if they contain certain provisions. They are still done in Indiana because they are best practice when engaging in surrogacy and physicians are bound by the recommendations of the professional organizations they belong to, such as ASRM and ACOG. They also may address issues that show the parties intent, such as what happens if one of the parties dies during the arrangement, since most agreements address posthumous reproduction and guardianship, and force the parties to consider situations they may not have otherwise considered. Further, there is some question as to whether the entire agreement is unenforceable or simply the provisions in the statute that are unenforceable.The second step is the legal parentage establishment with the courts. While the enforcement of surrogacy agreements may be questionable in Indiana, the Indiana courts have granted pre-birth orders in many circumstances, including when donor material is used by the intended parents. Second parent and step-parent adoptions are permitted in the state.
(Updated May 2024)
Iowa
In 2018, the Iowa Supreme Court issued an opinion in P.M. and C.M. v. T.B. and D.B., 907 N.W.2d 522 (Iowa 2018), upholding the enforceability of a gestational surrogacy agreement. Iowa Code section 710.11 implicitly permits surrogacy, and Iowa Administrative Code section 641-99.15 provides instruction on issuing birth certificates following birth by a gestational surrogate arrangement. 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 will be established by 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 through the pre- and post-birth parentage orders.
(Updated March 2024)
Kansas
In Kansas, gestational surrogacy is governed by the Kansas Uniform Parentage Act and the Adoption Code. No statute or case law prevents it. Courts in most counties are known to regularly issue pre-birth orders if at least one parent is genetically related to the child. If the Intended Parent is single or not legally married that parent must pursue the journey as a single intended parent or file a paternity action. If the Intended Parents are married, the non-biological parent can pursue a second-parent adoption. Married Intended parents who are in no way related to the resulting child, are able to get a pre-birth order declaring themselves as legal parents under KS 23-2302 and KSA 23-2207 or by going through an adoption process. Surrogacies using donor gametes will need to prove the donation was legal. The original birth record reflects the gestational carrier and, if applicable, the biological father. That record is sealed with a court proceeding and an amended birth certificate created reflecting the names of the intended parents. The amended birth certificate will be issued with the IP(s) name only as the legal parent and no mention of Gestational Carrier or their spouse will be on the amended birth certificate. Married same sex IPS will be listed as the genetic parent (i.e. Father) and the non-bio parent Mother/Parent. Generally, most provisions of a surrogacy contract will be enforced in Kansas. Kansas courts have expressed support for enforcing agreements which provide support of the unborn child. However, certain specific provisions, such as those governing termination of the pregnancy are not consistent with the United States and Kansas Constitutions, thus may not be enforceable. Compensated traditional (genetic) surrogacy in Kansas is permissible, but requires additional legal services such as confirmatory adoptions, donor agreements, and/or other parentage actions. Failure to comply with those laws can lead to criminal penalties. There are no specific legal requirements exist to serve as a gestational surrogate in the state of Kansas. There are no requirements for psychological evaluations – although recommended. For international intended parents, expedited apostilled birth certificates can be obtained.
(Updated April 2024)
Kentucky
KRS 199.590(4) states, "A person, agency, institution, or intermediary shall not be a party to a contract or agreement which would compensate a woman for her artificial insemination and subsequent termination of parental rights to a child born as a result of that artificial insemination. A person, agency, institution, or intermediary shall not receive compensation for the facilitation of contracts or agreements as proscribed by this subsection. Contracts or agreements entered into in violation of this subsection shall be void.” This means that a surrogate cannot carry a fetus created with her own egg. 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.
(Updated June 2024)
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).
(Updated June 2024)
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, regardless of sexual orientation, gender identity, marital status, or genetic connection to the child. Surrogacy laws in Maine set forth clear requirements for gestational surrogacy arrangements and eligibility requirements for gestational carriers and intended parents. The Intended Parent(s) or the surrogate may file a petition for pre-birth order. In Maine, there is always a brief hearing. Maine Vital Records will not honor an out of state birth order.
(Updated April 2024)
Maryland
Maryland is ART “friendly” where all individuals may pursue family building through gestational surrogacy. A parentage order may be obtained prior to birth, recognizing the parent or parents as the legal parents from birth. Parents, whether married or not, LGBTQ, or single, will be named on the birth certificate regardless of whether they used their own and/or donated gametes. The gestational carrier is never named on the birth certificate that is issued. If necessary, an intended parent may obtain both a pre and a post-birth court order. The court will also issue a second-parent adoption order following birth even if there is a pre-birth order. For the court to consider a parentage process in Maryland, either the intended parent(s) or the gestational surrogate must reside there. The Parties are unlikely to obtain a pre-birth order based solely on anticipated delivery location. Maryland does consider a case simply based upon where the medical procedures occurred. Maryland indirectly addresses embryo and egg donation. Note, the court process is widely accepted in Maryland and is not statutory, but based in equity and long-time practice. That said, caselaw does support gestational surrogacy. In re Roberto d.B. (2003) implicitly permits gestational surrogacy, and pre-birth orders are available to any Intended Parent. Maryland vital records will honor an out of state parentage order. Traditional surrogacy is permitted, though is legally risky. Following birth there will need to be a second or step-parent adoption by the non-genetic parent, or a termination of parental rights for a single parent working with a traditional surrogate. In Maryland, a gestational surrogate may be compensated and also may receive expenses.
(Updated June 2024)
Massachusetts
While there are no statutes permitted surrogacy, case law recognizes the concept of “intentional parenting” and the Massachusetts Supreme Court has held that the Probate and Family Court has the authority under its broad powers to establish the parentage of a child through gestational surrogacy pre-birth. Partanen v. Gallagher, 475 Mass. 632 (2016); Culliton v. Beth Israel Deaconess Med. Ct., 435 Mass. 285 (2001). Also Adoption of a Minor, 471 Mass. 373 (2015) held that G.L. c.46, sec 4B is to include determination of parentage born through any type of assisted reproduction technology; the person who consented to the ART procedure is a parent by virtue of consent. Pre-birth orders, post-birth orders, or both can be obtained for intended parents regardless of their marital status or their biological connection to the child. Traditional surrogacy agreements are not enforceable and must comply with adoption statutes.
(Updated April 2024)
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). In 2024, the legislature passed and the Governor signed the Assisted Reproduction and Surrogacy Parentage Act which will go into effect 90 days after the legislature adjourns for the year (currently scheduled to adjourn on Dec 31, 2024). The Act expressly permits surrogacy agreements provided the parties comply with the statutory requirements, including at least one party is a resident of MI and all parties be represented by an attorney licensed in MI for the duration of the term of the agreement. A genetic connection is not required between the intended parents and the child. The statute provides that the intended parents are the legal parents by operation of law. It also provides that before, on, or after the birth of a child, a party to the agreement may commence an action in the family division for entry of a parentage judgment.
(Updated April 2024)
Minnesota
There are no statutes or published case law specifically permitting or prohibiting surrogacy. Minnesota is a post-birth state as Minnesota’s Parentage Act states that if a parentage action is brought before the birth of the child, all proceedings must be stayed until after the birth. However, some attorneys will still attempt to obtain a pre-birth order under Minnesota’s old Declaratory Judgment Act and have done so successfully. However, results vary greatly by county and judge and obtaining a pre-birth order is contrary to Minnesota’s Parentage Act. Stepparent/second parent adoptions are permitted in the state and may be obtained by heterosexual or same sex married or unmarried couples. A post-birth parentage order can be obtained for any type of intended parent, including intended parents for whom neither has a genetic connection to the child.
(Updated April 2024)
Mississippi
There are no statutes or published case law specifically permitting or prohibiting surrogacy. However, Mississippi courts are prone to granting pre-birth orders. If neither intended parent is genetically related to the child, a pre-birth order is still possible. Expedited Post-birth adoptions are also available in the state.
(Updated March 2024)
Missouri
Missouri has no statutes or published case law specifically permitting or prohibiting surrogacy. Experienced attorneys routinely obtain post-birth orders under the Missouri Uniform Parentage Act (“MOUPA”) for single intended genetic parents or married intended parents where at least one of them is a genetic parent. Under certain circumstances, Attorneys have had success applying MOUPA to secure a parentage action for a single intended parent without a genetic connection.Although the MOUPA specifically disallows pre-birth parentage orders, it does sanction pre-birth filing so that the orders can get signed quickly upon birth. Importantly, the MOUPA has no apparatus for a non-genetic parent who is coupled but not married to a genetic parent and so intended parents should consult an attorney who practices both adoption and parentage law for guidance in establishing parentage under those circumstances.
(Updated March 2024)
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. See: MCA 40-6-106 (artificial insemination); MCA 40-5-235 (parentage orders); MCA 40-4-302 (stepparent adoptions)
(Updated April 2024)
Nebraska
R.R.S. Neb. 25-21, 200 declares surrogacy contracts to be void and unenforceable, but not illegal, so the language of the statute does allow surrogacy practice without a guarantee of enforceability. Pre-birth parentage orders are not available in the state of Nebraska, but legal/intended fathers and genetically biological mothers (if she provided the egg for the embryo carried by the gestational carrier) can be placed on the birth certificate at the hospital through use of an Acknowledgement of Paternity or Acknowledgement of Maternity, provided gestational carrier and her spouse (if any) sign off on the Acknowledgements as well. 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.
(Updated March 2024)
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.
(Updated March 2024)
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, regardless of sexual orientation, gender identity, marital status, or genetic connection to the child. Surrogacy laws in Maine set forth clear requirements for gestational surrogacy arrangements and eligibility requirements for gestational carriers and intended parents. Surrogacy laws in New Hampshire set forth clear requirements for gestational surrogacy arrangements and eligibility requirements for gestational carriers and intended parents. The Intended Parent(s) or the surrogate may file a petition for pre-birth order. In New Hampshire pre-birth and post birth orders are typically granted on the pleadings alone. New Hampshire will sometimes honor an out of state birth order.
(Updated April 2024)
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.
(Updated March 2024)
New Mexico
N.M. Stat. Ann. 40-11A-801 explicitly states that gestational surrogacy contracts are neither permitted nor prohibited. However, N.M. Stat. Ann. 40-11A-801 provides that a person who provides eggs, sperm, or embryos for or consents to assisted reproduction per the New Mexico UPA with the intent to be a parent of the child is a parent of the resulting child. Pre-birth parentage orders can be obtained by nearly any Intended Parent in any circumstance; however, without specific law on point, a single parent situation or a situation where neither parent is genetically related to the child may be subject to some level of risk."
(Updated April 2024)
New York
New York Fam. Ct. Act Article 5-C, also known as the “Child Parent Security Act”, became effective February 15, 2021 and allows for compensated gestational surrogacy to occur, with compliant gestational surrogacy agreements able to be enforced, and parentage orders able to be granted pre-birth. This law is gender neutral and marriage neutral and is available whether or not donor gametes or embryos were used. Several statutory requirements must be met however (or substantial compliance therewith), to be eligible to enter into an enforceable agreement and obtain a parentage order. The statute created a “Surrogate’s Bill of Rights” addressing things such as independent counsel, life insurance, medical decisions and more, and provides that surrogacy agencies working on an arrangement must be licensed by the NY Dept. of Health. Additionally, New York-licensed attorneys must represent both the carrier and IPs through the duration of the surrogacy agreement, negotiation, and parentage phase, as well as for some time after, as several obligations of IPs extend until one after the end of a pregnancy. Traditional surrogacy is not allowed by this statute and is still regarded as against public policy. Some changes are expected addressing insurance and residency, etc. in a bill expected to be signed by the Governor in or about the second half of 2024.
(Updated July 2024)
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.
(Updated March 2024)
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.
(Updated June 2024)
Ohio
J.F. v. D.B., 879 N.E.2d 740 (2007) held that surrogacy does not violate any public policy and therefore gestational surrogacy is permitted. Although it can be county and judge dependent, pre-birth parentage orders can be obtained by any Intended Parent in most circumstances, whether married or unmarried, heterosexual or same-sex, and even if neither Intended Parent is genetically related to the child.
(Updated April 2024)
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. Attorneys representing the Parties need to both be OK-licensed.
(Updated May 2024)
Oregon
There are no statutes or published case law specifically permitting or prohibiting surrogacy in the state. There is some case law (Sause and Schnitzer) that has both surrogacy and egg donation implications. However, surrogacy is an accepted practice 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. The declaratory judgment statute doesn’t have a venue requirement so a case can be filed in any county, and there is at least one county that has granted orders for genetic parents and non-genetic parents. 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. Using the declaratory judgment statute, however, avoids the need for a home study. ( See: 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.)
(Updated June 2024)
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). Most counties will grant a pre-birth order, but the requirements of submission or hearing vary by county and by judge. Post-birth adoptions, whether by stepparent or second parent, are also available in Pennsylvania.
(Updated April 2024)
Rhode Island
Rhode Island adopted the Rhode Island Uniform Parentage Act, R.I. Gen. Laws § 15-8.1, et seq., effective January 1, 2021, which expressly permits Gestational Surrogacy Agreements provided they meet the statutory requirements, one of which is that at least one of the intended parents is a US resident. Intended Parents do not need to be genetically related to the resulting child. Before the birth of a resulting child, any party to the gestational surrogacy agreement may commence a proceeding in either family court or the superior court to obtain a birth order. After the child is born, family court has exclusive jurisdiction over a birth order.
(Updated April 2024)
South Carolina
Mid-South Ins. Co. v. Doe, 274 F.Supp.2d 757 (2003) suggests gestational surrogacy contracts are permissible and enforceable. South Carolina is a pre-birth and post-birth state. Pre-birth orders can be obtained by Intended Parents, married or single, regardless of sexual orientation or the use of donor material. Procedures for obtaining a final order of parentage may differ among the counties.
(updated April 2024)
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 for residents. In addition, SDCL Section 22-17-14 makes it a crime for any person who “(1) coerces, compels, or attempts to compel a pregnant woman to undergo an abortion; (2) Requires a pregnant woman to agree to a provision that if she refuses to undergo an abortion, it is a breach of a contract; or (3) Requires a pregnant woman to agree to a provision that results in her assuming any cost, obligation, or responsibility for refusing to undergo an abortion.” Therefore, parties to a gestational carrier arrangement should ensure that no provision of their agreement would be deemed to violate this statute.”
(Updated March 2024)
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. If there are two intended parents and only one of them is a genetic parent, they must be married to each other in order to be able to complete the post-birth adoption process. A single intended parent, who is genetically related, can also obtain a pre-birth order, along with an order disestablishing the parentage of the gestational carrier.
(Updated April 2024)
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. Texas also requires that there be a medical necessity for surrogacy (Section 160.756 (b)(2) “the medical evidence provided shows that the intended mother is unable to carry a pregnancy to term and give birth to the child or is unable to carry the pregnancy to term and give birth to the child without unreasonable risk to her physical or mental health or to the health of the unborn child”).
(Updated April 2024)
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.
(Updated June 2024)
Vermont
The Vermont Parentage Act, Title 15c, V.S.A. stat. 801-809, permits parentage using a gestational carrier and requires a gestational carrier agreement between a gestational carrier and the Intended Parents. The Intended Parent(s) can be married or unmarried, a heterosexual or same-sex couple or individual, and even if neither Intended Parent is genetically related to the child. A pre- or post-birth parentage order can be obtained by a party, commencing proceedings in the Probate Division of the Superior Court.
(Updated April 2024)
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.
(Update pending)
Washington
RCW 26.26.A 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.
(Updated July 2024)
West Virginia
W.VA Code 61-2-14h(e)(3) permits gestational surrogacy; and pre-birth parentage orders will be issued in most instances, where the birth will occur in a hospital in the State, even if neither Intended Parent is genetically related to the child, with results varying by county and judge. (A new surrogacy bill was introduced in 2024 in the Senate, but did not pass the House.)
(Updated April 2024)
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. Courts are typically favorable to uncontested parentage proceedings and pre-birth parentage orders can usually be obtained as interlocutory (“interim”) orders, however post-birth orders are also required in order to obtain the child’s birth certificate listing the intended parents as the legal parents.
(Updated June 2024)
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.
(Updated pending)