Surrogacy in the United States
Surrogacy in the United States varies widely from state to state due to the absence of a unified federal law governing the practice. As a result, the legal, social, and ethical landscape of surrogacy is complex and diverse.
Types of Surrogacy
- Gestational Surrogacy: The most common form in the U.S., with the American Society for Reproductive Medicine (ASRM) reporting that the number of babies born via gestational carrier nearly tripled from 1,957 in 2015 to 5,000 in 2020. This reflects increasing acceptance and technological advancements in IVF treatments.
- Traditional Surrogacy: Much less common due to legal and emotional complexities. Its usage is not well-documented, but it’s considered a minority of surrogacy arrangements, particularly because of the genetic connection between the surrogate and the child, which complicates the legal landscape.
Legal Landscape of Surrogacy
- Permissive States: California, often seen as a benchmark for surrogacy-friendly legislation, facilitates hundreds of surrogacy births a year. The state’s legal framework ensures that intended parents can be listed on the birth certificate without needing to adopt the child post-birth. Connecticut and Illinois are also recognized for their comprehensive legal protections for all parties involved in surrogacy.
- Restrictive States: As of my last update, states like Louisiana and Michigan had restrictive laws regarding surrogacy.
- Gray Areas: Many states, including Texas and Pennsylvania, operate in a legal gray area, where surrogacy is practiced with the support of legal precedents rather than explicit statutes. This can create uncertainty and requires careful navigation by legal professionals.
Ethical and Social Considerations in Surrogacy
- Compensation: Compensation for gestational surrogates in the United States can range from $30,000 to $50,000, not including additional expenses related to pregnancy and legal fees, which can bring the total cost of surrogacy to between $90,000 and $130,000 for intended parents.
- International Couples: The U.S. attracts a significant number of international intended parents due to its robust legal frameworks in certain states.
- Success Rates: The success rate of gestational surrogacy varies but can be as high as 75% per transfer for some clinics, significantly higher than the average success rate of IVF cycles (which can be around 40% for women under 35, decreasing with age).
Is surrogacy legal in all 50 states
Surrogacy-Friendly States
- California: Widely recognized as one of the most surrogacy-friendly states, California has legal frameworks that support both gestational and traditional surrogacy agreements for all intended parents, regardless of marital status or sexual orientation. The state’s courts routinely grant pre-birth orders.
- Connecticut: Another state with strong legal protections for surrogacy, Connecticut allows compensated gestational surrogacy and provides a straightforward process for establishing parental rights, often before the child’s birth.
- Illinois: The Illinois Gestational Surrogacy Act (750 ILCS 47/) provides a clear legal basis for gestational surrogacy, making it a popular choice for intended parents. The law specifies the conditions under which surrogacy contracts are enforceable.
States with Restrictions or Complicated Legal Status
- New York: For many years, New York was known for its restrictive stance on surrogacy, banning compensated surrogacy agreements. However, the Child-Parent Security Act, which took effect on February 15, 2021, reversed this stance, legalizing gestational surrogacy and providing a framework for establishing parental rights, although it includes specific legal requirements and protections for surrogates.
- Michigan and Louisiana: These states have laws that are more restrictive towards surrogacy. Michigan, for example, prohibits compensated surrogacy and imposes penalties for such agreements. Louisiana allows surrogacy but has specific requirements, including that the surrogate must be married and that the intended parents must be a married couple consisting of a man and a woman.
States with Unclear or No Specific Legislation
- Montana: As of my last update, Montana doesn’t have specific laws regulating surrogacy, but court decisions have been generally favorable towards gestational surrogacy agreements.
- Idaho: Similar to Montana, Idaho lacks specific surrogacy legislation, but it is considered surrogacy-friendly due to favorable court rulings and the absence of restrictive laws.
New Jersey is among the states in the USA that are considered surrogacy-friendly, particularly after significant legislative changes in recent years. Here are some key points regarding surrogacy laws in New Jersey:
The New Jersey Gestational Carrier Agreement Act
In May 2018, New Jersey enacted the New Jersey Gestational Carrier Agreement Act, which formally legalized and regulated gestational surrogacy agreements in the state. This law was a landmark change, making it much easier for individuals and couples wishing to become parents through surrogacy to do so legally and safely within the state.
Key Provisions of the Act
- Gestational Surrogacy: The law applies to gestational surrogacy, where the surrogate is not genetically related to the child. This is achieved through in vitro fertilization (IVF), where an embryo created from the egg and sperm of the intended parents (or donors) is implanted in the surrogate.
- Legal Agreements: The act allows for legally enforceable gestational carrier agreements, provided certain conditions are met. These conditions include requirements that the surrogate must be at least 21 years old, has previously given birth, and has undergone medical and psychological evaluations. The intended parents and the surrogate must also have independent legal representation.
- Parental Rights: The law facilitates the process for intended parents to be recognized as the legal parents from birth, without the need for adoption proceedings. This is a significant aspect of the law, as it reduces legal uncertainties and complexities previously associated with surrogacy in New Jersey.
Surrogacy and Parental Rights
Before this act, New Jersey’s stance on surrogacy was complicated by the Baby M case in 1988, which was a landmark legal battle over surrogacy. The case involved a traditional surrogacy agreement (where the surrogate is also the egg donor), leading to a controversial and widely publicized court decision that initially granted custody to the surrogate mother. The case highlighted the legal complexities and potential for emotional and ethical dilemmas in surrogacy agreements.
The New Jersey Gestational Carrier Agreement Act of 2018, by focusing on gestational surrogacy, where the surrogate has no genetic link to the child, aimed to address and mitigate these complexities, providing a clearer and more secure legal framework for all parties involved.
Considerations for Intended Parents and Surrogates
For those considering surrogacy in New Jersey, it’s crucial to understand the specific legal requirements and to ensure that all parties’ rights and responsibilities are clearly defined in a gestational carrier agreement. Consulting with legal professionals who specialize in reproductive law is essential to navigate this process effectively.
In summary, New Jersey’s current laws support gestational surrogacy arrangements, offering a pathway for individuals and couples to become parents through surrogacy, with legal protections and clarity that were not as well-defined prior to the 2018 act.
States with best surrogacy laws
Surrogacy laws in the United States vary widely from state to state, with some being more favorable towards surrogacy arrangements than others. Laws are also subject to change, so it’s always a good idea to consult with a legal expert or surrogacy agency for the most current information. As of my last update in April 2023, here are some states that are generally considered to have favorable surrogacy laws:
- California: Known for being very surrogacy-friendly, California’s laws protect the rights of both the intended parents and the surrogate. Pre-birth orders are typically granted, which means the intended parents’ names can go directly on the birth certificate, and surrogacy contracts are recognized and enforceable.
- Connecticut: This state is also considered surrogacy-friendly, with laws that clearly support gestational surrogacy agreements for all parents regardless of marital status or sexual orientation. Pre-birth orders are granted.
- Delaware: Delaware’s laws are supportive of surrogacy, allowing pre-birth orders and having clear statutes in place to enforce surrogacy contracts. The state is friendly to all types of intended parents.
- Maine: Maine has comprehensive surrogacy laws that facilitate both gestational and traditional surrogacy agreements. The state allows pre-birth orders, making the legal process smoother for intended parents.
- Nevada: Nevada’s surrogacy laws are favorable for all intended parents, including LGBTQ+ individuals and couples. The state allows for the enforcement of surrogacy contracts and the issuance of pre-birth orders.
- New Hampshire: New Hampshire has supportive laws for gestational surrogacy, allowing pre-birth orders and recognizing surrogacy agreements. The legal process is generally straightforward for intended parents.
- Oregon: Oregon does not have specific statutes governing surrogacy but is considered surrogacy-friendly due to favorable court rulings and the general enforceability of surrogacy agreements. The state is known for its inclusivity towards all types of families.
