Gestational Surrogacy Law by State

Eran Amir

CEO and Founder of GoStork

As a new intended parent, thinking about the legal considerations ahead of starting your surrogacy journey may feel complicated. However, one of the most important elements to be aware of is the legal framework in the state where your gestational carrier (surrogate) resides. Surrogacy and family laws vary between states: some are considered ‘surrogacy-friendly’ states, others have no specific legal framework, while a few expressly prohibit it.

Legal representation is a must on any surrogacy journey. An Assisted Reproductive Technology (ART) attorney will help ensure that your surrogacy agreement (ie. contract with your gestational carrier) is in compliance with the law and that your parental rights are legally established. The overview below can help you with a basic understanding of the law in each state as you research your options.

In the coming weeks, we will be launching more in-depth information on the legal framework in each state, so do look out for that to come!


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Below is a brief overview of the legal framework, state by state.

Alabama
Gestational Surrogacy is generally permitted in Alabama. There is no statutory law that expressly permits surrogacy and courts are typically favorable towards surrogacy arrangements. Code of Ala. §26-17-801 has been reserved for a provision on Gestational Agreements.

Alaska
Gestational Surrogacy is generally permitted in Alaska. There is no statutory law that expressly permits surrogacy and courts are typically favorable towards surrogacy arrangements. Pre-Birth Orders are granted to married heterosexual couples who used their own eggs and sperm. It is unclear whether Pre-Birth Orders will be granted under different circumstances.

Arizona
Gestational Surrogacy in Arizona is expressly prohibited by Arizona Revised Statute §25-218, thus making surrogacy contracts statutorily unenforceable. 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 granted Pre-Birth Orders while still maintaining that the underlying contracts are unenforceable. (Soos v. Superior Ct. County of Maricopa, 897 P.2d 1356).

Arkansas
Gestational Surrogacy is expressly permitted by Arkansas Code §9-10-201. Arkansas Vital Statistics names both parents on the birth certificate – regardless of gender- so long as the couple is married (Pavan v. Smith, 137 S. Ct. 2075).

California
Gestational Surrogacy is permitted by California Family Law Sections 7960-7962. California is regarded as a highly surrogacy friendly state, both for heterosexual couples as well as for same-sex couples.

Colorado
Gestational Surrogacy is permitted by Colorado House Bill 1022 enacted as of May 6, 2021 which provides for Colorado Revised Stated Title 19 Article 4.5 101-114.

Connecticut
Gestational Surrogacy is permitted by Conn. Gen. Stat. §7-48a and expressly requires that the Intended Parents be named on the birth certificate as the child’s legal parents. Connect Vital Records issues birth certificates naming any parent named in a court parentage order for Gestational Surrogacy.

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.

Florida
Gestational Surrogacy in Florida is permitted under Florida Ch. 742.15 FL Stat. Gestational Surrogacy contracts will not be enforceable unless the Intended Parents are married and all parties to the contract are 18 years of age or older.

Georgia
There are no statutes or published case law specifically permitting or prohibiting surrogacy in Georgia. Georgia courts will typically uphold surrogacy agreements.

Hawaii
Gestational Surrogacy is generally permitted in Hawaii. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Idaho
Gestational Surrogacy is generally permitted in Idaho. There are no statutes that expressly prohibit or permit gestational surrogacy. There is a published court decision that held that any Intended Parent who is not genetically related to the child will not be issued a post-birth order but must instead complete a post-birth adoption in order to obtain legal parental rights over any resulting child.

Illinois
Gestational Surrogacy is permitted by 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 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.

Indiana
Gestational Surrogacy is expressly prohibited under Indiana Code 31-20-1-1. The Code makes gestational and traditional surrogacy contracts void and unenforceable as against public policy. This does not mean that surrogacy itself is illegal but rather that the contracts aren’t binding nor are they recognized or enforceable. Despite the statute, gestational surrogacy is still carried out in Indiana and certain courts will grant pre-birth orders. Please consult with a local attorney to determine if you can move forward with surrogacy in Indiana.

Iowa
Gestational Surrogacy is implicitly permitted by Iowa Code. Iowa Code §710.11, which prohibits the purchase or sale of an individual expressly exempts surrogacy agreements. Iowa Code §641-99.15 outlines the steps for Vital Records to take in issuing birth certificates to children born to Gestational Carriers. In 2018 the Supreme Court of Iowa held that a gestational surrogacy contract was legally enforceable in favor of the intended biological father against a surrogate mother and her husband, who were not the child’s genetic parents. The Court noted that a contrary holding invalidating surrogacy contracts would deprive infertile couples of the opportunity to raise their own biological children and would limit the personal autonomy of women willing to serve as surrogates to carry and deliver a baby to be raised by other loving parents.

Kansas
Gestational Surrogacy is generally permitted in Kansas. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Kentucky
Gestational Surrogacy is generally permitted in Kentucky. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Louisiana
Gestational Surrogacy arrangements are legalized 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 pursuant to La. R.S. §9:2718 – 9:2720.15.

Maine
Gestational Surrogacy is permitted by Maine Parentage Act Title 19A Chapter 61.

Maryland
Gestational Surrogacy is implicitly permitted by the highest Court’s decision in In re Robert d.B, 923 A.2d 115 (2007). Surrogacy contracts that involve the payment of a fee to the birth mother are, in most instances, illegal and unenforceable under Maryland Law. The decision whether to grant an adoption petition turns on the best interest of the child and, therefore, in the context of a surrogate adoption, a court may consider the payment of a surrogacy fee to the extent that it bears on the issue or on related issues such as the voluntariness of the birth mother’s consent to the adoption and they payment of a surrogacy fee does not by itself bar approval of an adoption petition. 85 Op. Att’y Gen. 348 (Dec 19, 2000).

Massachusetts
Gestational Surrogacy is generally permitted in Massachusetts by case law established by the highest Court in Massachusetts: Hodas v. Morin, 814 N.E.2d 230 (2004), Culliton v. Beth Isr. Deaconess Med. Ctr., 756 N.E.2d 1133 (2001), and R.R. v. M.H., 689 N.E.2d 790 (1998).

Michigan
Gestational Surrogacy is expressly prohibited under Michigan Surrogate Parenting Act MCL Section 722.855, declaring surrogacy contracts to be void and unenforceable as contrary to public policy. Surrogacy contracts for compensation are subject to criminal penalties.

Minnesota
Gestational Surrogacy is generally permitted in Minnesota. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Mississippi
Gestational Surrogacy is generally permitted in Mississippi. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Missouri
Gestational Surrogacy is generally permitted in Missouri. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Montana
Gestational Surrogacy is generally permitted in Montana. There are no statutes or published case law that specifically permits or prohibits surrogacy. Montana courts are typically favorable toward surrogacy agreements.

Nebraska
Gestational Surrogacy is expressly prohibited under R.R.S. Neb. 25-21, 200, declaring surrogacy contracts to be void and unenforceable. Gestational Surrogacy is carried out in Nebraska regardless and the statute provides that the biological father born pursuant to a surrogacy contract shall have all the rights and obligations imposed by law with respect to such child.

Nevada
Gestational Surrogacy is permitted by Nev. Rev. Stat. NRS 126.500 – 126.810. Courts in Nevada will issue a Pre-Birth Order to married and unmarried couples, same-sex couples, and individuals regardless of the genetic relationship to the child. Nevada does regulate Gestational Carrier Agreements and has specific requirements for the Intended Parents and Surrogates.

New Hampshire
Gestational Surrogacy is expressly permitted by N.H. Rev. Stat. Ann. 168-B.

New Jersey
Gestational Surrogacy is expressly permitted by the New Jersey Gestational Carrier Agreement Act of 2018 (N.J. Stat. §9:17-60-68.

New Mexico
Gestational Surrogacy contracts are neither permitted nor prohibited under N.M. Stat. Ann. 40-11A-801.

New York
Gestational Surrogacy is expressly permitted by New York’s Child Parent Security Act (NY CLS Family Ct. Act §581-401).

North Carolina
Gestational Surrogacy is generally permitted in North Carolina. There are no statutes or published case law that specifically permits or prohibits surrogacy.

North Dakota
Gestational Surrogacy is expressly permitted by N.D. Cent. Code 14-18-08, which states clearly that a child born to a gestational carrier is the child of the intended parents for all purposes.

Ohio
Gestational Surrogacy is in Ohio by published case law (J.F v. D.B, 879 N.E.2d 740, 2007). No public policy is violated when a Gestational Surrogacy contract is entered into.

Oklahoma
Gestational Surrogacy in Oklahoma is legalized by Oklahoma Gestational Agreement Act. “It is the policy of the State of Oklahoma to allow private parties to enter into gestational agreements in order to help facilitate the birth of children to parents who are not otherwise able to conceive or carry them, to allow gestational carriers of such children to be properly compensated for providing this important and selfless undertaking and to provide a mechanism to ensure that gestational agreements will be enforced and that the expectations of the parties to gestational agreements will be protected.”

Oregon
Gestational Surrogacy is generally permitted in Oregon. There are no statutes or published case law that specifically permits or prohibits surrogacy. Surrogacy is an accepted way to build one’s family in Oregon.

Pennsylvania
Gestational Surrogacy is generally permitted in Pennsylvania. There are no statutes or published case law that specifically permits or prohibits surrogacy. In J.F. v. D.B., 941 A.2d 718 the Pennsylvania Superior Court struck down a trial court’s holding that a surrogacy contract was contrary to public policy, thus allowing Gestational Surrogacy to grow in Pennsylvania.

Rhode Island
Gestational Surrogacy is permitted in Rhode Island by Rhode Island Uniform Parentage Act (RIUPA) §15-8.1-801-809, effective January 1, 2021.

South Carolina
Gestational Surrogacy is generally permitted in South Carolina. There are no statutes or published case law that specifically permits or prohibits surrogacy. Mid-South Ins. Co. v. Doe, 274 F. Supp.2d 757 (2003), implies that Gestational Surrogacy Agreements are valid in South Carolina.

South Dakota
Gestational Surrogacy is generally permitted in South Dakota. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Tennessee
Teen. Code Ann. 36-1-102(51) neither permits nor prohibits surrogacy, but merely defines it. Published case law, In re Adoption of Male Child A.F.C., 491 S.W.3d 316 (Tenn. Ct. App. 2014), ruled that the Gestational Carrier will be named as the mother on the birth certificate unless both parents use their own egg and own sperm. A second parent adoption will be required if an egg donor is used to remove the Gestational Carrier.

Texas
Gestational Surrogacy is permitted by Tex. Fam. Code 160-751 through 160-763, which authorizes Gestational Surrogacy for married Intended Parents who follow the procedures specified in the statute.

Utah
Gestational Surrogacy is permitted by Utah Code Ann. §78B-15-801 (2008), which permits Gestational Surrogacy for married Intended Parents. In 2020, §788-803 was amended to clarify that same-sex married couples are covered by the statute permitting Gestational Surrogacy. Single Intended Parents and unmarried couples are not able to use Gestational Surrogacy in Utah to grow their families. Under the statute, qualified Intended Parents file with a court to have their Gestational Surrogacy Agreement validated pre-birth. Then, post-birth, the court will order Vital Records to issue the birth certificate with the Intended Parents’ names.

Vermont
Gestational Surrogacy is specifically permitted by The Vermont Parent Act of 2018 (§15C-8-801 through 809).

Virginia
Gestational Surrogacy is permitted by Virginia’s Assisted Conception Statute, entitled “Status of Children of Assisted Conception. Intended Parents must be a married couple or an unmarried individual. The Gestational Carrier’s compensation is limited to reasonable medical and ancillary expenses.

Washington
Gestational Surrogacy is specifically permitted by Washington’s Uniform Parentage Act (ARCW §§26.26A.700 – 26.26A.785). Compensated Gestational Surrogacy, as well as Traditional Surrogacy arrangements that comply with the respective statutory framework, are permitted in Washington.

West Virginia
Gestational Surrogacy is permitted in West Virginia by W.VA Code §61-2-14h(e)(3), which permits fees and expenses in any agreement in which a woman agrees to become a surrogate mother (expressly prohibits the criminal penalties on the sale of child).

Wisconsin
Gestational Surrogacy is implicitly permitted in Wisconsin through published case law (Rosecky v. Schissel, 833 N.W.2d 634). The court concluded that surrogacy contracts are enforceable unless contrary to the child’s best interest.

Wyoming
Gestational Surrogacy is generally permitted in Wyoming. WY State 14-2-403(d) neither permits nor prohibits surrogacy. Surrogacy in Wyoming is rare due to practical considerations.

Before we conclude, it should be noted that…

Laws about fertility and reproductive rights are continually changing – your ART lawyer will advise you on the best way forward as well as draft your surrogacy agreement that ensures that all parties are on the same page, protecting your future family as well as your gestational carrier.

Learn more about the surrogacy journey HERE and find, compare and connect with top surrogacy agencies for free by registering on gostork.com.

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Disclaimer: The information provided on these pages does not, and is not intended to constitute legal advice; all content is for general informational purposes only and may not constitute the most up-to-date legal information, either. Please consult with an ART Lawyer for legal advice specific to your case.