Surrogacy Laws by State

Surrogacy Laws by State Map

The United States does not regulate surrogacy on a federal level, and surrogacy laws by state greatly vary. A few states, often called “surrogacy-friendly states,” provide complete legal protections for surrogacy as well as easy access to parental birth orders. On the other hand, a small number of “surrogacy-unfriendly” states have essentially outlawed commercial surrogacy or have extremely burdensome restrictions. Most states fall in between this range, with differing approaches to surrogacy contracts, establishing parental rights, and other legal factors.

We’ve put together this guide to surrogacy laws in the United States as a starting point for intended parents interested in surrogacy. Laws can change quickly, and how the laws are applied can even vary from county to county in the same state. For this reason, intended parents should always consult with a legal expert experienced in surrogacy laws in their state (and/or the state in which they intend to pursue surrogacy).

A note on traditional surrogacy: this article will only focus on laws related to gestational surrogacy, where the surrogate has no genetic relationship to the baby. Traditional surrogacy (where the surrogate provides her eggs for the pregnancy) involves many more complex legal, ethical, and emotional considerations. For that reason, many states prohibit traditional surrogacy, and many surrogacy agencies do not provide traditional surrogacy services. Eggceptional Fertility does not provide traditional surrogacy services.

What Legal Factors Affect Surrogacy Laws in Each State?

Broadly, the main factors involved in surrogacy laws include:

• Compensation: does a state allow for intended parents to compensate their surrogates (sometimes called commercial surrogacy)?
• Contracts: are surrogacy contracts legally enforceable?
• Parent requirements: do the laws apply equally to all intended parents, regardless of sexual orientation or marital status?
• Parental rights: can intended parents receive pre-birth parental orders? Do both parents receive parental rights regardless of genetic connection to the child?

Every state approaches these categories differently. If you live in a different state from your surrogate, you should review the laws in both states to make sure you understand the requirements.

What Makes State Laws Surrogacy-Friendly?

We assign states to one of three categories: Surrogacy-Friendly, Less-Friendly, and Prohibited. The criteria for each category include:

• Surrogacy-Friendly: Must either explicitly allow surrogacy or have no laws that prohibit surrogacy. The state must also have a defined process to establish parental rights.
• Less-Friendly: While surrogacy is possible in these states, it requires more attention and knowledge of the law.
• Prohibited: Criminalizes or otherwise prohibits surrogacy, sometimes by refusing to enforce surrogacy agreements.

As always, even within each category states vary in the specific policies and how the state applies them. For instance, some judges may be more willing to grant pre-birth orders than others. This is where knowledgeable, local surrogacy experts come in handy! They know the ins and outs of how surrogacy is practiced within a state, and not just what the letter of the law says.

Surrogacy-Friendly States

In general, the surrogacy process in these states is fairly predictable, with established legal steps. Surrogacy-friendly states also have some defined systems for intended parents to gain legal parental rights. The process in each state may differ depending on marital status and genetic connection to the child.

Less-Friendly States for Surrogacy

These states have more restrictions and hurdles for intended parents pursuing surrogacy. Surrogates may have to give up their parental rights, or parents who are not genetically related to the child may not be listed on the birth certificate and have to receive an adoption order instead. While surrogacy is possible in these states, it requires more attention and knowledge of the law.

Surrogacy Prohibited States

These states either prohibit surrogacy by law, have heavy restrictions and/or criminalize surrogacy. Surrogacy contracts are not legally enforceable, and commercial surrogacy (providing compensation to your surrogate) is typically prohibited. If surrogacy is allowed at all, it may only be for married heterosexual couples where both parents are genetically related to the child. We do not recommend pursuing surrogacy in these states.

A Shift Towards Surrogacy-Friendly Laws

We have seen a positive change over the past few years towards embracing surrogacy and assisted reproduction as a whole. For example, in 2019 and 2020, respectively, the states of Washington and New York legalized commercial gestational surrogacy after previously prohibiting it. We celebrate this increased access to family building for all people and are hopeful that even more states will legally protect the right to collaborative reproduction. As the surrogacy state laws continue to change rapidly, we are here to connect you with local surrogacy law experts to protect you and your surrogate on your surrogacy journey.