What are the laws concerning surrogacy?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A surrogate, also called “substitute,” is an individual that acts on behalf of another. The most common type of surrogate is a surrogate mother. Surrogate mothers are quickly becoming popular among couples that may be having trouble conceiving, couples that cannot have children, gay couples, single women, and women that have had risky pregnancies. While surrogacy has become a popular path for many different types of couples (and individuals), the laws have been either slow to catch up or non-existent. For this reason, and many others, it is important to understand the different types of surrogates/surrogacy and any laws that may apply to each. 

Types of Surrogates

There are two types of surrogates: gestational and traditional. Gestational surrogates are the most common type of surrogate. In this case, the surrogate carries a child that is not genetically related to her. The egg and sperm may come from the biological mother and father or the eggs and/or sperm may come from an anonymous (or known) donor. After the embryos are created through in vitro fertilization, the embryos are implanted in the surrogate’s uterus.

Traditional surrogates use their own eggs and the intended father’s sperm. The sperm is transferred to the surrogate during a process called intrauterine insemination (IUI). This process allows fertilization to take place naturally.

Whether a couple decides to use a gestational surrogate or a traditional surrogate, a contract is almost always an integral part of the event. What may be outlined in the contract generally depends on the wants and needs of the parties involved and any applicable state laws.

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State Laws and Surrogacy Contracts

The laws regarding surrogacy are either unclear or non-existent in most states, and very little recent information about surrogacy laws by state exists. For example, in 2002, the state of Florida recognized surrogacy agreements for married couples only, while Arizona law is unclear on the issue of surrogacy. As of 2004, the states of Indiana and Louisiana prohibited surrogacy agreements.

In the few states that recognize surrogacy contracts, a surrogate mother, after “conceiving” through artificial insemination, gives up her parental rights and the child at birth. The wife of the biological father then adopts the child. Generally, the biological father pays the birth mother’s medical and hospital expenses.

If you are among the increasing number of married couples seeking surrogate parenthood, start by checking the laws in your state as you may be on shaky footing. There is no uniformity among and between the states. Surrogacy contracts are illegal in a handful of states, permitted in a small number if no money is involved, and allowed in a few if money is paid. If this is the path you have chosen, please contact a family law attorney for help today.

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