Surrogacy, a process where a woman carries and delivers a baby for another person or couple, has become an increasingly popular option for those struggling with infertility or unable to carry a pregnancy themselves. However, Where surrogacy is legal in the United States is complex and varies significantly from state to state. This article provides an in-depth look at the current state of surrogacy laws across the nation, highlighting where the practice is legal, restricted, or prohibited.
Overview of Surrogacy Laws in the U.S.
As of 2024, there is no federal law governing surrogacy in the United States. This absence of nationwide legislation has led to a patchwork of state laws, court decisions, and unlegislated practices that create a complex legal environment for intended parents, surrogates, and medical professionals.
States can be broadly categorized into four groups:
States with explicit surrogacy-friendly laws
States with favorable surrogacy practices but no explicit laws
States with restrictions on surrogacy
States where surrogacy is prohibited or legally risky
States Where Surrogacy is Explicitly Legal
As of 2024, 19 states and the District of Columbia have passed laws that explicitly permit and regulate surrogacy:
- California
- Connecticut
- Delaware
- District of Columbia
- Illinois
- Maine
- Nevada
- New Hampshire
- New Jersey
- New York
- North Dakota
- Oregon
- Rhode Island
- Utah
- Vermont
- Virginia
- Washington
- Delaware
- Arkansas
- Florida
These states have enacted comprehensive statutes that provide legal protections for all parties involved in surrogacy arrangements. For example, California’s Uniform Parentage Act, considered one of the most progressive surrogacy laws in the country, allows for enforceable surrogacy contracts and pre-birth parentage orders for both traditional and gestational surrogacy arrangements.
Illinois, another surrogacy-friendly state, passed the Gestational Surrogacy Act in 2005, which outlines specific requirements for surrogacy contracts and establishes a streamlined process for establishing legal parentage.
States with Favorable Surrogacy Practices
Several states, while lacking explicit surrogacy statutes, have developed favorable practices through case law or unofficial policies:
- Alaska
- Colorado
- Georgia
- Hawaii
- Maryland
- Massachusetts
- Minnesota
- Missouri
- Montana
- North Carolina
- Ohio
- Pennsylvania
- Wisconsin
In these states, surrogacy arrangements are generally permitted and enforced, although the legal process may be less straightforward than in states with explicit laws. For instance, in Massachusetts, while there is no specific surrogacy statute, the state’s highest court has ruled in favor of enforcing surrogacy contracts and allowing pre-birth parentage orders.
States with Restrictions on Surrogacy
Some states have laws that place significant restrictions on surrogacy arrangements:
- Indiana
- Kansas
- Kentucky
- Louisiana
- Nebraska
- Oklahoma
- Texas
In these states, surrogacy may be allowed under certain circumstances, but with limitations. For example, in Louisiana, only gestational surrogacy is permitted, and only for married couples using their own genetic material. Compensation beyond reasonable medical expenses is prohibited.
States Where Surrogacy is Prohibited or Legally Risky
A small number of states either expressly prohibit surrogacy or have laws that make surrogacy arrangements legally risky:
- Michigan
- Arizona
Michigan explicitly prohibits all forms of surrogacy contracts, making them void and unenforceable. Facilitating a compensated surrogacy arrangement is a felony in Michigan, punishable by up to five years in prison and a fine of up to $50,000.
Arizona law states that surrogate parentage contracts are prohibited, and a surrogate is the legal mother of a child born through surrogacy.
Recent Legal Developments
The legal landscape of surrogacy in the United States has been evolving rapidly in recent years. Some notable developments include:
New York: In February 2021, the Child-Parent Security Act went into effect, legalizing compensated gestational surrogacy in New York after a long-standing ban.
Michigan: As of 2024, there are ongoing efforts to repeal Michigan’s Surrogate Parenting Act, which currently criminalizes compensated surrogacy.
Washington state: In 2018, Washington passed the Uniform Parentage Act, which legalized compensated surrogacy and provided clear guidelines for surrogacy arrangements.
Conclusion:
Surrogacy rates: While exact numbers are difficult to obtain due to the lack of centralized reporting, the Centers for Disease Control and Prevention (CDC) estimated that gestational carrier cycles accounted for 2.6% of all assisted reproductive technology (ART) cycles in the U.S. in 2019.
Success rates: According to the Society for Assisted Reproductive Technology (SART), the success rate for gestational surrogacy was around 30-35% per embryo transfer in 2018.
Costs: The average cost of surrogacy in the U.S. ranges from $90,000 to $130,000, depending on factors such as location, medical expenses, and surrogate compensation.
International comparison: The U.S. is considered one of the most surrogacy-friendly countries globally, attracting many international intended parents. Countries like India, Thailand, and Nepal, which were once popular surrogacy destinations, have since banned or restricted the practice for foreigners.
LGBTQ+ surrogacy: With the legalization of same-sex marriage nationwide in 2015, more states have explicitly included same-sex couples in their surrogacy laws. However, some states still have restrictions that disproportionately affect LGBTQ+ individuals and couples.
The legal landscape of surrogacy in the United States remains complex and varied. While a growing number of states have adopted surrogacy-friendly laws, providing clear legal frameworks for all parties involved, others continue to restrict or prohibit the practice. This state-by-state variation can create challenges for intended parents, surrogates, and medical professionals navigating the surrogacy process.
As societal attitudes evolve and medical technologies advance, it’s likely that more states will move towards adopting comprehensive surrogacy legislation. However, the absence of federal regulation means that the patchwork of state laws will likely continue to define the legal landscape of surrogacy in the U.S. for the foreseeable future.
For those considering surrogacy, whether as intended parents or as a surrogate, it’s crucial to work with experienced legal professionals who can navigate the specific laws and practices of the relevant states. As the legal landscape continues to evolve, staying informed about current laws and pending legislation in one’s state of residence or the state where the surrogacy arrangement will take place is essential for all parties involved in the surrogacy journey.
