Surrogacy Law in the United States

Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.

 

States generally considered to be surrogacy friendly include California, Illinois, Arkansas, Maryland, Washington D.C., Oregon, and New Hampshire among others. Both New Jersey and Washington State commercial surrogacy laws became effective from 1/1/2019.

 

For legal purposes, key factors are where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the policies of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.

 

The variations in policy mean that employee surrogacy benefits, which an increasing number of employers offer, can only be enjoyed in certain jurisdictions.