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Surrogacy, Part 1: Legal Parentage

Thousands of families around the world have successfully grown with the help of a surrogate mother, and you may have decided that surrogacy is the best option for your family. But before you decide, be sure you’ve done your homework. The legality of surrogacy changes depending on where you are, even within the United States. No one wants to get to the birth of their child and find that they aren’t the child’s legal parents based on local laws. If you are using international surrogacy, your child may even end up with no legal parents or citizenship due to differing laws about who is a legal parent at birth.

The types of surrogacy are many and various, but two distinctions make a legal difference: traditional versus gestational and commercial versus altruistic. During traditional surrogacy, a surrogate’s egg and either donor sperm or sperm from an intended parent are used to create a child. During gestational surrogacy, an embryo not genetically related to the surrogate is implanted using in-vitro fertilization. Commercial surrogates are compensated for their pregnancy in addition to their expenses. Altruistic surrogates are only reimbursed for the expenses they incur from the pregnancy. These surrogates are often the friends or family of the intended parents and are acting to help their loved ones have a child.

Surrogacy is vastly different depending on where you are in the world. Some countries, like Russia, Nigeria, and Colombia expressly permit surrogacy arrangements and legally protect the process. Others, like Germany, Hong Kong, and Cambodia, completely ban the practice. Most countries exist somewhere in between: In India and Thailand, international commercial surrogacy is not permitted. Some countries, including the United Kingdom, Denmark, and Canada, only allow altruistic surrogacy. Only surrogacy contracts involving heterosexual couples are upheld in some countries, including Georgia, Nigeria, and Greece.

Some places have no laws about surrogacy, like Laos and South Korea, allowing surrogacy but offering no guarantee of legal protections for surrogates or intended parents. Many countries allow gestational surrogacy but not traditional surrogacy. Many countries worry about the commodification of children and the possibility of the wealthy taking advantage of women in bad financial situations.

The United States has no federal laws about surrogacy, leaving the states to figure it out themselves. This has resulted in a national legal landscape that resembles the international landscape. States including California and Colorado allow surrogacy and legally protect participants. Going the opposite way are Arizona, Michigan, and Nebraska, which either refuse to uphold surrogacy arrangements or ban surrogacy outright. Michigan even imposes a prison sentence of up to five years and a $50,000 fine for commercial surrogacy.

In between are many shades of gray. For instance, Idaho only grants post-birth parentage orders and even then only if at least one of the intended parents is biologically related to the child. Tennessee allows only genetically related intended parents to be listed on the birth certificate without adoption. Virginia allows only altruistic surrogacy and requires either full hearings or a four-day waiting period to allow the surrogate to rescind consent. Many states, including North Carolina, don’t have any law regarding surrogacy, and outcomes depend on the individual courts and judges, although most courts will grant pre-birth parentage orders, especially when one intended parent is genetically related to the child.

The legal landscape surrounding surrogacy can be a minefield if you aren’t careful. What is legal and even protected in one place may be completely prohibited a few miles away across a border. If you plan to use surrogacy to build your family or if you want to help those who do, be sure you know exactly what you’re getting into, where you’re going to be when it happens, and what that means for the child you are helping to bring into the world.