Legal Considerations for Surrogacy Across U.S. States

The United States does not regulate surrogacy on a federal level. Instead, individual states create their own laws governing surrogacy contracts, compensation and parental rights. As a result, the legality and enforceability of surrogacy agreements can differ greatly from state to state. Understanding these differences is critical for intended parents and surrogates alike. This article explores surrogacy‑friendly states, jurisdictions that impose restrictions and states where surrogacy contracts are prohibited, and offers practical advice on navigating the legal landscape.

Surrogacy‑Friendly States

In surrogacy‑friendly states, pre‑birth orders are routinely granted, allowing intended parents to be listed on the birth certificate regardless of marital status, sexual orientation or genetic connection. Compensation agreements are enforced and both parents’ names appear on the birth certificate. Notable surrogacy‑friendly states include California, New Jersey, Nevada, Illinois and Connecticut. California, widely considered the gold standard, offers clear statutes that support compensated gestational surrogacy, pre‑birth orders and parental rights for non‑genetic parents.

Surrogacy‑Accommodating States

 Some states do not have explicit legislation permitting surrogacy but are generally accommodating. Gestational surrogacy is typically allowed, and courts are willing to enforce contracts. 

States in this category include:

surrogacy in Alabama

surrogacy in Alaska

surrogacy in Arkansas

surrogacy in New York

surrogacy in Colorado

surrogacy in Florida

surrogacy in Georgia

surrogacy in Hawaii

surrogacy in Illinois

surrogacy in Iowa

surrogacy in Kansas

surrogacy in Kentucky

surrogacy in Massachusetts

surrogacy in Maryland

surrogacy in Michigan

surrogacy in Montana

surrogacy in North Carolina

surrogacy in Texas

and surrogacy in West Virginia along with many more states across the country.

Intended parents still need to work with attorneys to understand specific requirements and ensure compliance.

Less Friendly or Uncertain States

Certain states permit surrogacy but impose additional legal hurdles or have unclear laws. Arizona, Indiana, Tennessee, Virginia and Wyoming fall into this category. In these states, pre‑birth orders may not be available, and intended parents might need to complete a post‑birth adoption or parental order. Courts may interpret surrogacy contracts differently from county to county, so working with an attorney who knows the local landscape is essential.

States Where Surrogacy Contracts Are Prohibited

Only a handful of states explicitly restrict or void surrogacy contracts. Louisiana and Nebraska prohibit compensated surrogacy agreements or make them unenforceable. In these red‑light states, intended parents might still pursue altruistic surrogacy but should expect legal challenges and the possibility of contested parentage. Because laws can change, always consult an attorney to verify the current status.

Key Legal Steps for Intended Parents

Regardless of the state, several legal steps are critical in every surrogacy journey:

• Select experienced legal counsel: Each party should retain separate attorneys who specialize in assisted reproductive technology (ART) law in the surrogate’s state. They will draft contracts, advise on parental rights and file necessary orders.
• Draft a comprehensive contract: The surrogacy agreement should specify compensation, responsibilities, decisions about pregnancy and potential contingencies. Both parties must understand and agree to the terms.
• Obtain parentage orders: In friendly states, pre‑birth orders allow the intended parents to be listed on the birth certificate. In less friendly states, a post‑birth order or adoption may be required to establish parental rights.
• Ensure insurance coverage: Confirm that the surrogate’s health insurance will cover pregnancy and delivery or obtain a separate policy. Review liability and life‑insurance coverage as part of risk management.

Expert Quote

“Navigating the patchwork of U.S. surrogacy law requires local expertise. A surrogacy‑friendly state can simplify your journey, but even in accommodating states, carefully drafted contracts and attentive legal representation are non‑negotiable.” — Dr. Kulsoom, MBBS

Case Study: Legal Differences Illustrated

Case Study: Two Families, Two States

Case 1: Surrogacy in California – Stephanie and Mark selected a surrogate in California. Their attorney filed a pre‑birth order at 12 weeks, and the court issued an order recognizing the couple as the legal parents before the baby’s birth. The delivery went smoothly, and the birth certificate listed Stephanie and Mark as parents. The legal process was straightforward and predictable.

Case 2: Surrogacy in Nebraska – Emily and Raj attempted surrogacy in Nebraska, where compensated surrogacy contracts are unenforceable. Their attorneys advised them that they would need to pursue altruistic surrogacy with no compensation and complete a post‑birth adoption to secure parental rights. The process was lengthy, and they eventually chose to work with a surrogate in Colorado instead, where surrogacy is more accommodating.

Testimonials

Intended Parent: “Working with an ART attorney in Illinois made all the difference. Our lawyer explained the law, drafted a detailed contract and secured our pre‑birth order without delay. We felt confident that our rights were protected.” — Olivia R.

Surrogate: “I live in Texas, and the legal process was smooth because my state accommodates surrogacy. Having my own attorney ensured that my interests were protected and that I understood every clause in the contract.” — Dana M.

Legal Expert: “The most common mistake I see is intended parents hiring an attorney in their own state rather than the surrogate’s state. Because each state has its own rules, always hire local counsel.” — James L., Esq.

Related Guides

• Surrogacy Process in the United States
• Surrogacy Costs and Financing in the United States
• Insurance and Risk Management in Surrogacy Agreements
• Ethical Considerations in Modern Surrogacy

Frequently Asked Questions 

Q: Do both intended parents need to be listed on the birth certificate?

Ans: In friendly states, pre‑birth orders allow both intended parents’ names on the birth certificate, regardless of marital status or genetic link. In less friendly states, you may need to obtain a post‑birth order or complete an adoption.

Q: Are surrogacy contracts enforceable everywhere?

Ans: No. States like Louisiana and Nebraska either void or prohibit compensated surrogacy contracts. Other states enforce contracts differently, so consult a specialist before drafting an agreement.

Q: How do international intended parents navigate U.S. surrogacy laws?

Ans: International parents must comply with U.S. federal immigration laws and the laws of the surrogate’s state. They should work with attorneys experienced in cross‑border surrogacy to secure parentage and obtain travel documents for the newborn. Some countries may also require adoption or additional legal steps upon returning home.

Next Steps with Patients Medical NYC

Whether you’re considering surrogacy in California, Florida or another state, having the right legal and medical team is essential. Patients Medical NYC partners with surrogacy agencies and attorneys across the country to help you navigate state laws, coordinate care through licensed providers and connect you with diverse donors via IndianEggDonors.com and EggDonors4All.com. Schedule a consultation with our physicians and legal network to explore your options.