Surrogacy Law By State

The Best States for Surrogacy

These surrogacy-friendly states permit surrogacies for all parents, grant pre-birth parentage orders statewide and name the intended parents on the birth certificate.

California

Gestational surrogacy is permitted by statute and backed by additional long-standing supportive case law. Traditional surrogacy is permitted because it is not prohibited by statute or published case law. Courts grant pre-birth parentage orders, but they are not effective until the moment of birth.

Colorado

Gestational and traditional surrogacies are permitted under the Colorado Surrogacy Agreement Act of 2021. Pre-birth parentage orders are granted by the courts.

Connecticut

Gestational surrogacy is condoned by Connecticut General Statute §7-48a, which orders Vital Records to issue birth certificates naming the intended parents in a gestational surrogacy situation. Courts may grant pre-birth orders. Traditional surrogacy is permitted because no statute or case law prohibits it; however, pre-birth orders are not granted, and the surrogate must terminate the biological father’s rights in probate court after birth.

District of Columbia

Gestational surrogacy is permitted by statute, and courts grant pre-birth parentage orders. The pre-birth order is not effective until after the birth. The same statute also permits traditional surrogacy. However, an order of parentage in a traditional surrogacy case cannot be issued until at least 48 hours after the birth.

Delaware

Gestational surrogacy is permitted under statute if the gestational carrier is “not a parent of a child born as a result of a gestational carrier agreement.” Pre-birth parentage orders are granted but not enforced until after the birth. The legality of traditional surrogacy is unclear.

Maine

Maine grants statutory permission to engage in gestational surrogacy. Pre-birth parentage orders are granted in almost every county. Traditional surrogacy is permitted if the surrogate enters into a contract with a family member. For someone other than a family member, a formal adoption is required.

New Hampshire

Gestational surrogacy is permitted by statute, and courts grant pre-birth parentage orders. Traditional surrogacy is permitted, but pre-birth orders are not available.

New Jersey

Gestational surrogacy arrangements and pre-birth orders are enforceable by law under certain conditions. The New Jersey law that governs gestational surrogacy specifically excludes traditional surrogacy, but it is permitted if it is uncompensated and if there is no pre-birth agreement to surrender the child. The intended parents must wait until after birth to adopt the child. 

Nevada

Gestational surrogacy is permitted by statute, and courts grant pre-birth parentage orders. Traditional surrogacy is not included in the statute and is, therefore, legally risky in Nevada.

Rhode Island

Gestational surrogacy has been permitted since 2021. Pre-birth parentage orders are granted only if at least one of the intended parents is a U.S. resident. Traditional surrogacy is permitted only when the surrogate is related to the intended parents and the surrogacy agreement meets all specified requirements, including that at least one of the intended parents is a U.S. citizen.

Vermont

The Vermont Parentage Act of 2018 permits gestational surrogacy. Pre-birth parentage orders are granted by the courts. Traditional surrogacy is permitted only because it is not prohibited. However, it is not covered under the Vermont Parentage Act, and is therefore treated like adoption.

Washington

Under certain conditions, gestational surrogacy agreements are enforceable. Pre-birth parentage orders are permitted but they are stayed until the birth. Traditional surrogacy is permitted, but genetic surrogacy agreements must be validated by a court before assisted reproduction begins. Pre-birth orders are not granted in traditional surrogacy cases, but post-birth orders are available after the 48-hour post-birth period during which the surrogate may change her mind. If the surrogate rescinds the agreement, the court decides parentage based on the best interests of the child.

SURROGACY LEGAL STATES WHERE SURROGACY IS PERMITTED BUT RESULTS MAY VARY

Alabama

Gestational and traditional surrogacies are permitted because no statute or published case law prohibits them. Pre-birth parentage orders may be possible, but this varies by county. Post-birth adoptions are an easier alternative; the pre-birth consent becomes effective 5 days after delivery. Egg and sperm donors are not considered parents if the donation occurred in a doctor’s office.

Alaska

Gestational and traditional surrogacies are permitted because they are not prohibited by statute or published case law. Courts grant pre-birth parentage orders that are filed in the Anchorage judicial district. 

Arkansas

Surrogacy is permitted by case law interpretation of Arkansas Code § 9-10-201, which refers to artificial insemination. Since 2017, Arkansas Vital Statistics names both parents on the birth certificate — regardless of gender — so long as the couple is married. The state grants pre-birth parentage orders. 

Florida

Gestational surrogacy is permitted by statute for married couples who are allowed to file Petitions for Affirmation of Parental Status. The surrogacy statute does not apply to any other intended parent. Other intended parents may be able to do surrogacy in Florida, either by filing paternity and maternity petitions or through pre-planned adoptions. Pre-birth parentage orders are not generally granted; Vital Records names the parents on the birth certificate after birth. Traditional surrogacy is permitted and open to any prospective parent. The traditional surrogate may revoke her consent up to 48 hours after birth.

Georgia

Gestational and traditional surrogacies are permitted because they are not prohibited by statute or case law. Courts grant pre-birth parentage orders in gestational surrogacy situations. In traditional surrogacy, the biological father may establish paternity pre-birth, while the non-biological parent must wait until post-birth and then obtain a stepparent or second parent adoption.

Hawaii

Gestational surrogacy is permitted because it is not prohibited by statute or case law. Pre-birth parentage orders are not granted; only post-birth orders are granted. The legality of traditional surrogacy is unclear.

Illinois

Gestational surrogacy is permitted by statute. Pre-birth parentage orders are not necessary, and post-birth orders are not required in most cases. By statute, intended parents may bypass the court and go straight to Vital Records to obtain a birth certificate, so long as all statutory requirements are met, and all necessary certifications have been filed with the Illinois Department of Public Health and with the delivery hospital prior to the child’s birth. Otherwise, a post-birth parentage court order is necessary. Traditional surrogacy, permitted because it is not prohibited, is treated like a stepparent adoption if the intended parent provides the sperm. The traditional surrogate cannot relinquish her maternity rights prior to 72 hours after the birth.

Iowa

Gestational surrogacy is permitted by code. Courts grant partial pre-birth orders. The surrogate is presumed to be the legal mother, and only the intended father (if a heterosexual couple) or the biological father (if a same-sex couple) can obtain a pre-birth order, after which the non-biological parent must undergo a post-birth process, either in Iowa or elsewhere, to terminate the gestational carrier’s rights and establish the second parent’s legal rights. Traditional surrogacy has been decriminalized. Filing a Termination of Parental Rights, paternity action and/or adoption may be required to establish the birth certificate.

Kansas

Gestational and traditional surrogacies are permitted because they are not prohibited. Courts grant pre-birth parentage orders for gestational pregnancies. In traditional surrogacy, paternity can be established in accordance with the Kansas Paternity Act, which sets forth strict requirements regarding compensation. Non-compliance carries criminal penalties.

Kentucky

Gestational surrogacy is permitted because it is not prohibited by statute or case law, and courts may grant pre-birth parentage orders. Traditional surrogacy is prohibited by law. 

Maryland

Gestational surrogacy is allowed (by case law and practice) for singles, unmarried couples, and those using their own gametes or donor egg, sperm or embryo. Maryland is an LGBTQ+ couples-friendly state. Intended parents can obtain a pre-birth parentage order. Traditional surrogacy with compensation is legally risky, as the enforceability of the contract is uncertain. Most attorneys will not handle traditional surrogacy cases in Maryland.

Massachusetts

Gestational surrogacy is permitted by case law, and courts grant pre-birth parentage orders. However, traditional surrogacy agreements are extremely restrictive and not commonly enforced in court. A traditional surrogate must wait at least 4 days after the delivery of the child to relinquish her rights, but she can place the child immediately with the intended parents. If the intended father is not biologically related to the child, then an adoption is required.

Minnesota

Gestational surrogacy is permitted because it is not prohibited. Some Minnesota courts grant pre-birth parentage orders. Those that do not will allow pleadings to be filed pre-birth, but parentage is not established until the birth. Traditional surrogacy is not addressed by statute, but when it occurs, it is typically handled via a stepparent adoption in which the surrogate is treated as the birth parent.

Mississippi

Gestational and traditional surrogacies are permitted because case law or statute do not prohibit these procedures. The courts grant pre-birth parentage orders. There is not much history regarding traditional surrogacy in Mississippi.

Missouri

In the case of gestational surrogacy, a petition may be filed pre-birth, but it is not effective until after the birth. A preliminary hearing may be requested to resolve parentage issues before the birth so that the parentage order takes effect immediately after the birth. While traditional surrogacy is permitted, the non-biological parent may be subject to adoption-related restrictions. These include criminal background checks and a 6-month waiting period. If the intended father is genetically related to the child, he can complete a voluntary acknowledgement of paternity, which allows his name to go directly on the birth certificate. The intended mother files a parentage action or adoption or a combination of the two.

Montana

Gestational and traditional surrogacies are permitted because they are not prohibited. Courts grant pre-birth parentage orders in gestational surrogacy situations, but the court may require a post-birth hearing or adoption in traditional surrogacy cases.

North Carolina

Gestational surrogacy is permitted because it is not prohibited by statute or published case law. Courts grant pre-birth parentage orders. Traditional surrogacy may not be legal. Some courts name the biological father and the surrogate mother as parents on the birth certificate.

North Dakota

Gestational surrogacy is permitted by a statute that states that a child born to a gestational surrogate is the child of the intended parents. Pre-birth parentage orders are granted. North Dakota does not allow traditional surrogacy, and such contracts are declared void and unenforceable. 

New Mexico

New Mexico statute states that gestational surrogacy arrangements are neither expressly permitted nor prohibited. Pre-birth orders are granted, and the courts have begun to name both intended parents on the original birth certificate. The state’s adoption laws place strict limits on payments in traditional surrogacy arrangements. The surrogate’s rights are relinquished only in accordance with adoption laws, and in some situations, the intended parent may be required to share custody and pay child support.

Ohio

Ohio permits gestational surrogacy under published case law. Contracts are enforceable, but restrictions apply. About half of Ohio’s courts grant pre-birth parentage orders while the other half grants post-birth orders. Traditional surrogacy is permitted because it is not prohibited, but the enforceability of the contract varies by judge and situation. Some courts enforce traditional surrogacy arrangements, but only if they are non-compensated, compassionate arrangements.

Oklahoma

Gestational carrier agreements are enforceable, and pre-birth parentage orders are granted only when certain conditions are met. Oklahoma treats traditional surrogacy like adoption and requires that the surrogate not be compensated.

Oregon

Gestational surrogacy is permitted because it is not prohibited, and pre-birth parentage orders are granted. Traditional surrogacy is also permitted because it is not prohibited. If the traditional surrogate is not married, the biological father can establish paternity by filing a Joint Acknowledgment of Paternity with the surrogate. If the traditional surrogate is married, filing a paternity proceeding may be required to establish the biological father as the legal father. In either event, a subsequent second parent adoption will be necessary to establish the spouse or partner as the second legal parent. Alternatively, the intended parents can skip a pre-birth order for one parent and opt for a post-birth adoption by both parents.

Pennsylvania

Gestational surrogacy is permitted because no statute or published case law prohibits it. However, the application of surrogacy law varies by county and judge, especially when donors are involved. Pre-birth parentage orders are granted but results vary by county and facts. While non-compensated traditional surrogacy is permitted, pre-birth orders are not granted because the surrogate cannot terminate her rights until 72 hours after the child’s birth.

South Carolina

Gestational surrogacy is permitted because it is not prohibited by statute. In fact, case law suggests that surrogacy is valid. Most courts grant a Consent Temporary Order before birth, and a Final Order of Parentage is granted within 30 days of delivery. Because traditional surrogacy is treated like adoption, it may be illegal unless payments are reasonable according to the adoption statute.

South Dakota

Gestational and traditional surrogacy are permitted because they are not prohibited. Pre-birth parentage orders are granted.

Texas

Gestational surrogacy is permitted by statute for married intended parents who have their gestational carrier agreement validated by a court before the birth. Pre-birth parentage orders are granted per the statutory validation procedure. Traditional surrogacy is handled like an adoption, and the paperwork may be filed only after the birth.

Utah

Gestational surrogacy is permitted by statute for married intended parents, who can be heterosexual or same-sex couples. Qualified intended parents must have the surrogacy agreement validated by a court before the birth, after which the court orders Vital Records to issue the birth certificated with the intended parents’ names. Traditional surrogacy is permitted because it is not prohibited, but the statute regarding gestational surrogacy explicitly excludes traditional surrogacy. 

West Virginia

A West Virginia statute permits gestational surrogacy, and fees and expenses are explicitly permitted. Courts grant pre-birth parentage orders. Traditional surrogacy is permitted because it is not prohibited by statute or published case law.

Wisconsin

Gestational and traditional surrogacies are permitted by a Wisconsin Supreme Court decision that ruled that surrogacy contracts are enforceable unless they are not in the child’s best interest. In gestational surrogacy cases, most judges issue pre-birth parentage orders, but they are considered “interim.” The final order is issued after the birth to make obtaining the birth certificate easier. A traditional surrogate may not be required to relinquish her parental rights, but provisions in the contract regarding custody can be upheld if they are not contrary to the child’s best interest.

SURROGACY LAWS BY STATE: STATES WITH POTENTIAL LEGAL HURDLES

Idaho

Idaho permits gestational and traditional surrogacies because it does not prohibit them. However, case law mandates that a non-genetic parent must adopt the child to be recognized as the legal parent. Pre-birth parentage orders are not granted.

New York

New York permits compensated surrogacy, but only for intended parents who are New York residents. The courts grant pre-birth parentage orders, but they are not effective until after the birth. Traditional surrogacy is banned and parties who enter into such agreements are subject to criminal and civil penalties. Non-compensated traditional surrogacy agreements are not enforceable, but parentage may be established through adoption.

Tennessee

Gestational and traditional surrogacies are neither expressly allowed nor disallowed. A Tennessee statute defines surrogacy for purposes of the adoption code. Case law mandates that the gestational surrogate is named the mother on the birth certificate unless the intended parents both use their own sperm and egg. If an egg donor is used, the surrogate’s name remains on the birth certificate until the second parent (intended mother or father) undertakes an adoption. The second parent then replaces the surrogate on the birth certificate. If the intended mother is the genetic mother, her name goes directly on the birth certificate. If the intended father is single, he can petition to have the space on the birth certificate for mother changed to read None or Unknown. Pre-birth parentage orders are granted only if at least one intended parent is genetically related to the child.

The Tennessee Supreme Court ruled that the parental rights of traditional surrogates could not be terminated prior to the birth of the child but must be addressed like the parental rights of any woman who gives birth to her genetic child. The Court considers the best interests of the child regarding custody. The Court also ruled that while the contract is not binding, courts may consider the terms of a surrogacy contract as a factor in the best-interest analysis.

Virginia

Gestational surrogacy is permitted under the Assisted Conception Statute for intended parents who are a married couple or an unmarried individual. Compensation is limited to reasonable medical and housing expenses related to the pregnancy. The surrogate cannot give consent until 4 days after birth. Pre-birth parentage orders are not granted. While court approval of the contract before embryo transfer is available, the process is lengthy and expensive. Most intended parents choose to avoid court approval and sign the birth certificate paperwork 4 days after delivery, and then file with the Birth Registrar. Traditional surrogacy is permitted if all statutory restrictions are met.

Wyoming

While the state’s Parentage Act does not authorize or prohibit gestational surrogacy, assisted reproduction is subject to the statute. A proceeding to determine parentage may be started before birth, but the final order is not issued until after the birth. Likewise, traditional surrogacy is neither authorized nor prohibited, but a traditional surrogate is considered a birth mother. A birth mother cannot terminate her rights to the child until after the birth.

SURROGACY LAWS BY STATE: CONTRACTS ARE VOID AND UNENFORCEABLE IN THESE STATES

Arizona

Surrogacy contracts are prohibited in Arizona by a statute stating that no person may enter into or assist in creating a surrogacy contract. Gestational surrogacy is practiced in the state and some courts may grant pre-birth orders, but the surrogacy contracts remain unenforceable. 

Indiana

While surrogacy contracts are void and unenforceable, the practice continues. Some courts have even granted pre-birth orders establishing the rights of intended parents in gestational surrogacy situations. The courts have refused to grant pre-birth orders for traditional surrogacy; the intended parents are required to go through a post-birth adoption procedure.

SURROGACY LAWS BY STATE: STATES THAT PROHIBIT SURROGACY CONTRACTS

Louisiana

Gestational surrogacy is limited to heterosexual married couples using their own gametes and places strict requirements on surrogacy arrangements, including a prohibition on compensation. Entering into a surrogacy agreement that is not sanctioned by the 2016 law carries civil and criminal penalties. Pre-birth orders are granted under limited circumstances. Contracts that compensate a traditional surrogate are void and unenforceable.

Michigan

All surrogacy contracts and agreements are “void and unenforceable as contrary to public policy.” Plus, surrogacy contracts involving compensation are subject to criminal penalties. Pre-birth orders are not granted if compensation or living expenses are involved; they are granted only in “compassionate” cases, meaning that one of the intended parents has a genetic tie to the child, the intended parents are married, and the intended parents and surrogate each have legal representation.

Nebraska

Nebraska law makes compensated surrogacy contracts unenforceable, but it declares that the biological father is the sole legal parent. Only uncompensated surrogacy is allowed but the underlying contract is void and unenforceable. Nebraska grants no pre-birth parentage orders. Post-birth orders are granted only when the surrogate is not compensated. The surrogate is named on the birth certificate with the biological father, and then the couple must return to their home state to pursue a stepparent adoption for the intended mother. Only then will Nebraska amend the birth certificate.

What are my options if I live in a state where surrogacy is illegal?

If you want to become a surrogate mother but live in a non-surrogacy-friendly state, that doesn’t necessarily mean the end of your journey. However, surrogacy compensation may vary state by state. For intended parents, there are still options available, including connecting with a surrogate who lives in a state where the laws are more accommodating to the process.

Working with ISC means intended parents will receive full support every step of the way to help ensure all the accompanying legal hurdles can be cleared.

Is hiring a reproductive lawyer necessary?

Cutting through all the red tape surrounding the surrogacy journey can be overwhelming for anyone. This is why it’s recommended that intended parents enlist the services of an experienced attorney with experience in reproductive law. He or she will have the expertise needed to understand the legalities of surrogacy by state to better ensure the smoothest process possible under the specific circumstances.

Even surrogacy-friendly states may present complications that require a certain level of familiarity with the law to resolve. Intended parents who hire a lawyer to assist them through the process can be assured that they will have all their obligations taken care of so they can focus on preparing to welcome their baby into the family.