In traditional surrogacy, as opposed to gestational surrogacy, the surrogate is both the egg donor and the carrier for the intended parents, and therefore is genetically linked to the resulting child.
Traditional surrogacy provides gay men and couples a unique opportunity to have their own biological child, but the practice is not legal everywhere in the United States. Check below to see where your state falls.
States that Allow Traditional Surrogacy
The following states, namely Florida, Maine, Maryland, Missouri, New Hampshire, Virginia, and Wisconsin explicitly permit compensated traditional surrogacy through state statute or case law. However, these states often have restrictions on who can enter these contacts. In Maine, for instance, traditional surrogacy is legal only if the gestational carrier is a family member. In Virginia, only married couples can use a traditional surrogate, and any payments between the surrogate and intended parents must be limited to costs associated with medical care. In Missouri, non-biological parents may be forced to undergo the same process as an adoptive parent, including background checks and a waiting period.
Additionally, since a traditional surrogate is the biological mother of the child, obtaining what’s known as a “pre-birth parentage order” can be difficult, even in states that expressly allow the practice. A pre-birth order allows both you and your partner to be listed on your child’s birth certificate at birth, regardless of whether or not you or your partner is biologically related to the child. If you are unable to obtain a pre-birth parentage order, you may be able to do so following the birth. In some instances, however, the non-biological father may be required to undergo adoption proceedings.
States with No Traditional Surrogacy Laws
Other states — namely Alaska, Alabama, Arkansas, Colorado, Connecticut, California, Delaware, Georgia, Hawaii, Idaho, Illinois, Kansas, Minnesota, Mississippi, Montana, Nevada, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wyoming — have no laws on the books explicitly prohibiting the practice, meaning the law is ambiguous on the use of traditional surrogacy but it is not technically illegal. In all of these states, it may be more difficult, if not impossible, to obtain a pre-birth parentage order, meaning the process of listing you and/or your partner on your child’s birth certificate may have to occur post birth. In Rhode Island, for instance, a traditional surrogate is not allowed to terminate her parental rights until after the birth of the child.
Despite the lack of a specific statute regulating traditional surrogacy, additional restrictions may still apply. In Florida and Maryland, for instance, intended parents can compensate the surrogate for her medical bills and living expenses, but no other compensation is allowed. Several other states, such as New Mexico, Oklahoma, South Carolina, and Texas, treat traditional surrogacy no different from adoption. As such, the ability of intended parents to compensate a surrogate in these states may also be extremely limited.
States Where Compensated Traditional Surrogacy Contracts are Unenforceable
In several states, namely Arizona, Indiana, Kentucky, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Dakota, Washington, and the District of Columbia, traditional surrogacy is specifically prohibited by state statute.
In some states, however, the prohibition is more benign than in others. In Indiana, for instance, gay couples may still work with a traditional surrogate to start their family, but any contract drafted may not be enforceable in a court since surrogacy contracts are considered “void” in the state.
Other states have specifically sought to prohibit same-sex couples from enlisting the services of a traditional surrogate. In August of 2016, for instance, Louisiana passed a bill that restricts all surrogacy contracts to married heterosexual couples.
Several of these states will impose fees or even jail time on couples who attempt to enter into a contract with a traditional surrogate. Kentucky, Michigan, New York, Washington, and the District of Columbia specifically prohibit compensated surrogacy contracts, and those entering such contracts may be subject to criminal penalties. While “compassionate” surrogacy — where the surrogate is not compensated — is legal in states like New York, others such as Arizona will punish traditional surrogacy of any variety.
The information included in this article is intended to be informational and is not intended to substitute for legal advice. Before entering into a traditional surrogacy contract, be sure to consult a lawyer as the laws governing surrogacy are constantly changing. Interested in gestational surrogacy? Check out our article on which states have legalized the practice.
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