When you’re considering becoming a surrogate, one of the first questions you probably have is, “What are the surrogacy laws in the United States?”
Before you embark on the surrogacy journey, it’s important that you understand the current status of surrogacy laws in the U.S. and how they may affect your personal surrogacy journey. While one of the best resources for learning more about this topic is your local surrogacy attorney, and the following information should not be construed as legal advice, you can find some of the basic information you need to know in this article.
An Overview of U.S. Surrogacy Laws
First, it’s important to understand that surrogacy laws in the United States are not regulated on a federal level. Instead, surrogacy laws are determined by individual states. While some states are more favorable to the surrogacy process, others have created restrictions that make the process difficult to complete.
Because you are the one who will carry the intended parents’ baby, your state surrogacy laws will be the ones that matter in your personal surrogacy journey. So, if you’re considering becoming a surrogate, it’s imperative that you speak with a surrogacy professional to determine whether this will even be a possibility based on your state’s surrogacy legislation.
Even if you find out that your state’s laws on surrogacy don’t allow for certain aspects of the surrogacy journey, there may still be hope. Because surrogacy is a rapidly advancing field, many surrogacy laws in the United States are outdated — and certain surrogacy judges and lawyers recognize this. Therefore, the way they choose to interpret and enforce those surrogacy laws may be in a more liberal manner than the strict legislation would imply. This is why it’s so important that you speak with a surrogacy attorney to determine what the real situation is with surrogacy and the law in your state.
In addition to the way local surrogacy professionals interpret your state’s surrogacy laws, there are several different legal issues in surrogacy that may affect your personal surrogacy journey.
- Commercial Surrogacy Laws
Commercial surrogacy is any surrogacy where the surrogate receives a base compensation for her services. While many surrogacy professionals today encourage commercial surrogacy, not all surrogacy laws in the United States allow for a woman to receive this compensation. Some, like New Jersey and New York, completely outlaw any compensation for surrogates, while other states strictly regulate the amount a surrogate can receive in base compensation and pregnancy-related expenses. If surrogates and intended parents don’t follow these surrogacy laws, they could face criminal charges.
If you live in a state where commercial surrogacy is outlawed, it’s likely that the only kind of surrogacy you’ll be able to complete is an altruistic surrogacy — a path you should only take after serious consideration.
- Traditional Surrogacy Laws
While many states have gestational surrogacy laws that are favorable to the process, some states may outlaw traditional surrogacy (surrogacy in which the surrogate is genetically related to the baby she is carrying). Often, this is because traditional surrogacy comes with additional legal and emotional complications that could make the process dangerous for both intended parents and prospective surrogates. To avoid these complications, some state legislators have decided to make traditional surrogacy illegal.
Many surrogacy professionals will not complete traditional surrogacies but, if you are interested in a traditional surrogacy that you will complete independently, consider speaking with a local surrogacy attorney for more information on your state’s traditional surrogacy laws.
- Enforceability of Surrogacy Contracts
Another aspect of surrogacy laws is the enforceability of surrogacy contracts — one of the most important legal aspects of surrogacy. In most cases, a surrogacy contract is a legally binding document that lays out rights and responsibilities for both intended parents and surrogates. In some states, however, these surrogacy agreements cannot be enforced, which puts all parties in danger should someone break their end of the bargain.
If you live in a state where surrogacy legislation does not allow for the enforceability of surrogacy contracts, becoming a surrogate is a risky endeavor. You may not even find any surrogacy lawyers who are willing to complete your surrogacy contract, especially in certain states where creating a surrogacy contract could result in criminal repercussions.
- Availability of Pre-Birth Orders
Finally, one of the last aspects of U.S. surrogacy laws is the way that intended parents can establish their parental rights to a child born via surrogacy. While these laws on surrogacy may not affect you as much as intended parents, it’s still important to know how the legal process works.
Some state surrogacy laws allow for intended parents to establish their parentage prior to delivery, while others require the birth of a child before legal steps can be taken to establish the intended parents’ legal rights. Remember, the gestational and traditional surrogacy laws that will affect the intended parents’ ability to establish parentage are not the laws of their state but the laws of your state as the surrogate. Your surrogacy lawyer will work with you and the intended parents to complete the legal process that’s necessary for your surrogacy situation.
Surrogacy laws in the United States are widely variable and, even in states where the laws may seem to indicate one thing, the actual way the legal process takes place may be completely different. If you are considering becoming a surrogate, your local surrogacy agency and surrogacy attorney will discuss the surrogacy laws in your state and how they may impact your surrogacy journey. Understanding these laws may seem complicated at first, but remember that this understanding is an integral part of completing a surrogacy that meets your goals and expectations — and in which your rights and interests will be protected throughout.
To learn more about the legal process of surrogacy, get started by contacting a local surrogacy professional.