The Most Surrogacy-Friendly States in the US

What are the best states for surrogacy? And which don’t support the process? We have answers.

US Surrogacy laws are changing constantly and can be very different from state to state. Some states do not allow surrogacy in any form, while others have legislation that specifically supports these agreements. Because of all of these factors and the complex legal environment surrounding surrogacy and reproductive technologies, it is crucial to consult with a reproductive attorney before getting started. This is especially true if you live in a state that isn’t surrogacy-friendly.

Unsure what the surrogacy laws and regulations are where you live? We understand how confusing and overwhelming this process can be. We’ve created a guide to surrogacy laws by state to help you navigate this portion of your journey.

Understanding US Surrogacy Laws by State

Is surrogacy legal in all 50 states? No. There is not one overarching law in the US regarding surrogacy agreements. Instead, they are determined on a state-by-state basis.

To help you understand surrogacy laws by state, we’ve broken everything down into three categories: best, worst and conditional. The best states for surrogacy allow intended parents to hire a gestational carrier and pay her fair compensation for her time and effort. Often, these states also have laws that make it straightforward for intended parents to be granted parentage rights. Surrogacy-friendly states don’t require post-birth legal action because the intended parents can be put onto the birth certificate at birth.

The worst states for surrogacy usually have laws in place that specifically prohibit or criminalize surrogacy arrangements. Often, these states legally consider the woman who gives birth to a baby the “mother,” even if she’s not genetically related. In those situations, biological parents have to “adopt” their own children after birth.

Conditional states have specific provisions in their laws that dictate who is able or unable to access surrogacy care. They can be very restrictive, depending on circumstances.

The Best States for Surrogacy

• California: California has the friendliest surrogacy laws in the US. In order for parentage to be established, there are specific steps that need to be performed prior to the birth of the child. However, there are a couple of key stipulations: The future parents and surrogate must each retain separate attorneys during the process, plus the surrogacy agreement must be executed before the surrogate begins any medications or has any related medical procedures.
• Connecticut: Like California, surrogacy is legal and enforceable in Connecticut. In most cases, the Intended Parents could be put directly on the birth certificate after birth without the need to undergo adoption proceedings.
• Delaware: As long as there is no genetic tie to the baby from the surrogate, Delaware law allows for clear steps in naming the Intended Parents as legal parents at birth. This protects their right to make medical decisions immediately upon birth and provides important legal protection for everyone involved in the arrangement.
• New Hampshire: In addition to establishing standards for gestational carrier agreements, New Hampshire law includes specific protections for those who may access third-party protections. People can become parents through surrogacy regardless of marital status and sexual orientation.
• Nevada: Nevada’s surrogacy laws were updated in 2013, addressing some of the many issues present in the old laws. The new laws allow people of any marital status, gender or sexual orientation to apply to be Intended Parents. In addition, the new law provides recipients of egg, sperm and embryo donation with legal protections, making Nevada extremely surrogacy-friendly.
• Colorado: Even though there is no official law governing surrogacy in Colorado, the courts have generally been favorable to Intended Parents and surrogates wishing to participate in a surrogacy agreement.
• Oregon: Oregon laws allow a birth certificate to be easily changed after birth. The hospital will initially file the birth certificate with the surrogate’s name on it, but it can be easily changed to remove her name and add the intended parents. The courts are also very accepting of many different types of parents: gay couples, heterosexual couples, and single parents.
• Washington: Surrogacy became legal in Washington on January 1st, 2019. The new law allows for surrogacy contracts to be legally enforceable in the courts. Additionally, intended parents can obtain pre-birth parentage orders.
• Washington, DC: Surrogacy was illegal in DC until 2017. Now, there are laws that allow for both traditional and gestational agreements. These two types of agreement are regulated differently: gestational agreements allow for parentage orders to be obtained ahead of the baby’s birth, while traditional arrangements may require a 48-hour waiting period.
• Maine: Surrogacy has been straightforward and supported in this state since 2016 when the Maine Parentage Act was passed. Now, there are laws in place that make both gestational and traditional surrogacy agreements safe and equitable. These laws facilitate pre-birth parentage orders and have regulations in place to protect the child as well as the parents and the surrogate herself.
• New Jersey: In 2018, the New Jersey Gestational Carrier Agreement Act was passed, which made the state officially surrogacy-friendly. In this state, gestational agreements are legal and support both intended parents and surrogates. This act makes it easy for parents to obtain pre-birth orders.
• New York: In April 2020, the Parent-Child Security Act was passed in New York. This finally legalized surrogacy agreements across New York state and created one of the more secure and inclusive environments in the country for families and surrogates alike.

The Worst States for Surrogacy

• Louisiana: Louisiana law only allows surrogacy for heterosexual married couples who are using their own eggs or sperm. They do issue pre-birth orders in certain rare situations, but it is still not recommended to proceed with a surrogacy cycle here.
• Michigan: Michigan law expressly prohibits paid surrogacy cycles, making surrogacy cycles unenforceable. In some situations, pre-birth orders can be granted as long as the surrogate is not compensated.

Conditional States for Surrogacy: The In-Betweens

Some states also have “conditional” legislation, meaning only certain families and/or surrogate candidates will be able to enter an agreement. There are many factors that can impact whether surrogacy is legal or a possibility in a given state, like the marital status of the intended parent(s,) the marital status of the surrogate, and, unfortunately, even sexual orientation.

Some states also have no laws or legislation surrounding surrogacy. We also consider these to be “in-between” since surrogacy is possible, but there are fewer protective laws and resources in place.

We consider the following states as “in-betweeners”:

• Arkansas
• Florida
• Georgia
• Iowa
• Illinois
• Massachusetts
• Maine
• North Dakota
• Rhode Island
• Tennessee
• Texas
• Utah
• Virginia
• Vermont
• Wisconsin

These states have laws in place that allow surrogacy, but ease of access may vary depending on certain conditions:

• Nebraska
• Maryland
• New Mexico
• Pennsylvania
• Wyoming’
• West Virginia

Cost Considerations: Understanding Surrogacy Affordability by Location

Laws aren’t the only thing to consider when entering a surrogacy agreement. Depending on your state, your price tag can vary. In places where surrogacy is popular, it may be a more expensive experience. Much of this is due to your surrogate’s compensation package: in places where surrogates are in high demand, they are often paid a more significant wage.

We understand surrogacy is a large investment, especially in the US, where surrogates receive generous pay from their intended parents. For this reason, many families choose to enter a surrogacy agreement in Mexico or Canada, where costs are often lower. However, due to fewer prospective surrogates in these locations, your overall process may take longer.

Your Surrogacy Journey: Choosing the Right State

Where you choose to begin your surrogacy journey will be a personal choice. It may also depend on the surrogate herself; it’s ideal to consider her home state first so you can consider the local laws around the procedure. Hiring an attorney who specializes in reproductive law is essential as they are the best person to advise you on the most up-to-date US surrogacy laws by state. We can help you find a good one! Working with an experienced surrogacy agency is also important; they often have relationships with local reproductive attorneys.

Extraordinary Conceptions is proud to work with surrogates all over the country and talented reproductive attorneys who can help guide you in this process. Get in touch with us today to discuss getting started on your surrogacy journey!