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 granting Pre-Birth Orders while still maintaining that the underlying contracts are unenforceable. (Soos v. Superior Ct. County of Maricopa, 897 P.2d 1356).
Pre-Birth Orders are likely to be granted when both the Intended Parents are genetically related to the child. When an egg or sperm donor is used and at least one of the Intended Parents is genetically related to the child, a pre-birth order may be possible. When neither Intended Parent shares a genetic relationship to the child, a parentage order will not be possible, and a married heterosexual couple must wait until after the child’s delivery to file for a stepparent adoption.
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