Surrogacy Laws

By The British Surrogacy Centre

US surrogacy be complicated as different US states have different surrogacy laws. Here is a basic guide for you. But speaking to us is the best way to get all the info you need.

All of our Social Workers are up to date on all issues of Worldwide laws of surrogacy, and the legal framework and restrictions on surrogacy in the UK.

Case managing the preparations for parental order applications (including giving guidance to parents in more straightforward cases to enable them to represent themselves and recommending legal teams around the UK who will fight your case for you if need be),
Providing professional social work representation in disputes in relation to surrogacy, and child protection issues if they arise.
Keeping up to date case management files on Intended Parents throughout the process that can be used in cases later on down the line if needed to back up your case should there be a need to go to court to prove parental responsibility etc. (we will keep a detailed account of your case in your file, this will account for your expenditure during your process so it can be clearly seen that you are not breaking the law in any way regarding payments to the surrogate for expenses etc. all signed off and approved by your social worker)

Our aim is to secure your family’s position and to make sure that once you go through the process, you have the absolute legal right to keep your child and bring them home.

We are here for you on every step of your journey.

Below is summary of laws in the UK and various US states. You can live chat with us or contact us if you have more specific questions

UK Surrogacy Laws

Summary of UK Surrogacy Laws

The British Surrogacy Centre reps have been involved in the world of surrogacy since the mid 1990’s. Both our UK and US reps are seen as some of the leading names in the world of surrogacy and have been highly visible in this area for years. No other organisation has had the amount of experience across both sides of the Atlantic as we have access too.

Among our areas of expertise are:

Advice on international surrogacy, including travelling home with your family, entry clearance and citizenship issues and experience dealing with the USA, India and many other jurisdictions
All of our Social Workers are up to date on all issues of Worldwide law, including parenthood following surrogacy and the legal framework and restrictions in the UK,
Case managing the preparations for parental order applications (including giving guidance to parents in more straightforward cases to enable them to represent themselves and recommending legal teams around the UK who will fight your case for you if need be),
Providing professional social work representation in disputes in relation to surrogacy, and child protection issues if they arise.
Keeping up to date case management files on Intended Parents throughout the process that can be used in cases later on down the line if needed to back up your case should there be a need to go to court to prove parental responsibility etc. Our aim is to secure your family’s position and to make sure that once you go through the process you have the absolute legal right to keep your child and bring them home.

Laws In The UK

There is no doubt that surrogacy raises legal issues which send shivers down the spine of everyone involved. Especially in countries like the UK where it is sometimes seen to exist in a seedy underworld! It doesn’t have to be so difficult, there are ways to work within the law. Please take the notes below as a general overview only and not as a substitute for the professional advice which you should also take.

Surrogacy is legal in the UK, although the law does not recognise it as a binding agreement on either of the parties involved during the period preceding and immediately after the birth of the child. With this in mind, if you use a surrogate who is based in the UK for example, the intended parents cannot do prior to the birth to secure their position with total certainty – even if IVF treatment has been used and the child is genetically-related to one or both parents and not related to the surrogate mother.

This is NOT the case if you choose to have your baby in the USA. In California for example, you can apply to the court for a pre-birth order that will name you and your partner as the legal parents of any children born to your surrogate between a certain set of dates. This paperwork will come with instructions to the hospital setting out rules for them to follow on the birth of your baby. It will give you the absolute power of all decisions and it will allow both you and your partner to have your names listed on the birth certificate. This birth certificate can then be used to apply for British Citizenship at a later date.

Our team of professionals have many years of experience in this field, certainly the most experience in the UK.

In the UK, at birth, the intended father’s name can be put on the birth certificate and he immediately has equal rights over the child, along with the surrogate mother. Six weeks after the birth of the child, the intended parents can apply for a Parental Order which gives them full and permanent rights over the child and, at this stage, the surrogate mother relinquishes all rights.

In the UK, surrogacy arrangements can only be made for UK residents. So a UK based surrogate cannot give birth to a child for an international couple. It is illegal under the Adoption and Children Act of 2002 for anyone to take a child out of the UK with a view to adopting/parenting it in another country.

While it is best to be prepared for every eventuality, there is no need to approach surrogacy with trepidation and the fear that you may be entering into a complex legal nightmare. The vast majority of intended parents find it rather less stressful than that – but you must have an experienced and sympathetic team representing you from the outset.

USA Surrogacy Law

Surrogacy Laws In The USA

US Law is very complicated as different states have different laws. California heads the way in terms of acceptability and ease which is where we tend to advise our clients to go particularly our gay clients. We do however have cases in numerous other US States therefore please contact us if you have a particular preference on the location of your surrogacy journey.

Use the tabs in this section for more information about specific states within the USA

- California

California Law

California is accepting of surrogacy agreements and upholds agreements that include Lesbian, Gay, Bisexual and Transgender (LGBT) individuals. While the State has no Statute directly addressing surrogacy, California’s courts have used the State’s Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases in the country regarding surrogacy rights (Johnson v. Calvert) was decided in California.

In 1993, the California Supreme Court decided Johnson v. Calvert, in which they held that the Intended Parents in a Gestational Surrogacy agreement (where the surrogate is not the biological contributor of the egg) should be recognized as the natural and legal parents. The Court decided that the person who intended to procreate — in this case, the mother who provided her egg to the surrogate — should be considered the natural mother. This also follows through to a couple who uses the services of an Egg Donor.

In the 1994 case of the marriage of Moschetta, a California Court of Appeals addressed the question of how to determine parentage when a child is conceived via Traditional Surrogacy (in which the Surrogate Mother is the biological contributor of the egg) and is born after the Intended Parents had separated. The Court held that the Intended Father and the Surrogate Mother were the legal parents of the child, leaving the Intended Mother without parental rights.

The 1998 case of the marriage of Buzzanca, is an example of how complex the facts in surrogacy cases can get. In Buzzanca, a Gestational Surrogate was impregnated using an anonymous egg and anonymous sperm. In other words, one could identify six individuals as having the potential to be a legal parent of the child: the Egg Donor, the sperm donor, the Intended Mother, the Intended Father, the gestational mother or the husband of the gestational mother. Ultimately, the Court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the Intended Parents are the lawful parents of the child.

In 1999, in the case of Drewitt-Barlow v Bellamy, the same-sex couple from Essex UK who petitioned the Supreme Court of California for both their names to be assigned to their unborn twin babies’ birth certificates when they were born as Parent 1 and Parent 2, was won. This was a landmark case that paved the way for same-sex couples around the world to be named on their babies’ birth certificates.

Finally, in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G. The Court held that, under the Uniform Parentage Act, two women can be the legal parents of a child produced through surrogacy. This ruling presumably applies to all members of the LGBT community.

One of the most important advantages of performing surrogacy in California, is that it is possible to get a Pre-Birth Order which will establish you as the legal parents of any children born to your surrogate within a specified time period. The timeframe to obtain a judgment can take several months, mostly due to the court’s availability to review the documents and/or set the matter for hearing. To obtain the Pre-Birth Order, the paperwork would usually be filed with the court between the fourth and seventh month of your surrogate’s pregnancy. This is now seen as a very standard application and certainly not a hearing that you have to attend in person.

However, if your surrogate becomes high risk for early delivery at any point of the pregnancy, for example if your surrogate is pregnant with multiples, you may choose to file earlier. This is in order to ensure the judgment is in place prior to the birth of your child(ren) to prevent the Surrogate’s name from being listed on your child’s birth certificate.

Once the Order is obtained, the hospital where your surrogate will be delivering at should be forwarded a copy. Normally this will go to the social work department. This will highlight to the hospital team that this is a surrogacy arrangement, and that specialised handling should be put in place to accommodate the needs of the Intended Parents and the surrogate and her family. Most hospitals are now very familiar with these arrangements and have a specific protocol in place to ensure the transition goes smoothly for everyone. Please make sure you have a copy of the judgement with you at all times, as this will help speed things along if the hospital has mislaid or lost the original one they had.

In the US, it is the hospital’s duty to register the birth of any children born at that hospital. This means that a full-time registrar will be at the hospital that will come along to your private room within 24 hours of the birth of your babies and fill out the birth registration forms. This form will be signed by you both, and by the delivering doctor. Once this has been done, the registrar will forward the paperwork to the California State Department of Vital records, where the birth certificate will be produced. This will then be ready for collection within the next two weeks.

Birth Certificates in the US — a view from Thomas M. Pinkerton

Thomas M. Pinkerton is recognised as one of the leading and most influential lawyers on the subject of surrogacy anywhere in the US. He has successfully gained Pre-Birth Orders for many couples dating back to the late 1990s, when they were first introduced. In a recent article addressing the issues surrounding birth certificates he said:

“In all cases where a surrogate gives birth to a child for another couple or person, the California Office of Vital Records will only allow the Intended Parents’ name(s) to go on the birth certificate if the certificate is accompanied by a Superior Court judgment naming the Intended Parent(s) as the legal parent(s) of the child. Without such a judgment, the surrogate’s name (and if she is married, her husband’s name) must go on the birth certificate. Because the birth certificate must be registered with the Office of Vital Records within ten days of the birth, the judgment should be presented to the birth records department of the hospital at the time of birth. As a practical matter, the judgment should be obtained no later than twenty weeks into the pregnancy. The practical reason for this advice is that after twenty weeks Vital Records will require either a certificate of birth or foetal death, both of which require the parent’s name(s).

“Where there is both an Intended Mother and an Intended Father, filling out the birth certificate is straightforward. The hospital where the child is born simply follows the court judgment and fills out the birth certificate with the Intended Mother and Intended Father’s names in the appropriate boxes. If a single man is the sole parent, however, the box designated, “Mother”, cannot be left blank. This means that the single male parent has two choices. He can opt to have the surrogate’s name go in the box for, “Mother”, and his name in the box for, “Father”, or he can elect to have his name go in the box for, “Mother”, and leave the box for, “Father”, left blank. In both cases, the judgment calls for the birth certificate to be reissued with the single man’s name in the box for, “Father”, and the box for, “Mother”, left with a dash (-). The best choice is to have his name go in the box for, “Mother”, so that the birth certificate is as accurate as possible from the time of birth.

“For the gay or lesbian couple, the best course of action is to have the court issue its judgment requiring that both Intended Parents’ names go on the birth certificate, one in the box for, “Father”, and one in the box for, “Mother”.

- New York

New York Law

Since 1992, surrogate parenting contracts in New York have been seen as void, unenforceable and contrary to public policy. The main reason for this is because surrogacy contracts have been interpreted to involve, in the words of one New York court, the, “trafficking of children”. The Statute defines surrogate parenting contracts as agreements in which a surrogate agrees to be either impregnated with the fertilized ovum of another woman or artificially inseminated; and further agrees to consent to the adoption of the child born as a result of the impregnation or insemination. Parties to surrogate parenting contracts involving compensation are subject to civil penalties of up to $500. The stiffest penalties, fines of up to $10,000 and forfeiture of fees received in connection with such contracts, are levelled against those who arrange compensated surrogacy contracts for profit. Repeat violators of the Statute may be charged with a felony. Parties to uncompensated surrogacy contracts are not subject to civil or criminal penalties.

People who assist in arranging the contract (agencies or facilitators) are liable for up to a civil penalty of $10,000 and forfeiture of the fee received in brokering the contract. A second violation constitutes a felony. A birth mother’s participation in the contract, however, may not be held against her in a custody dispute with the genetic parents or grandparents.

- Florida

Florida Law

Florida law explicitly allows both Gestational agreements and Traditional Surrogacy, but neither is available to same-sex couples. This is because the Florida Gestational Surrogacy Statutes impose strict requirements on the contracts, among them limiting involvement to, “couples that are legally married [which then prevents same-sex couples from being allowed to use surrogacy as they are not legally married] and are both 18 years of age or older.” The law governing Traditional Surrogacy arrangements, which are referred to as, “pre-planned adoption agreements,” connects those contracts to State adoption law. Additionally, Florida law explicitly prohibits “homosexuals” from adopting. In 2004, this law was upheld in federal Court by the 11th Circuit Court of Appeals in the case of Lofton vs. Kearney.

Traditional Surrogacy is referred to as a, “pre-planned adoption agreement”, with a “voluntary mother”, and requires court approval of the adoption. The most important distinction between them is that under pre-planned adoptions, the birth mother has 48 hours after the birth of the child to change her mind; the adoption must be approved by a court; and the Intended Parents do not have to be biologically related to the child.

In contrast, under a Gestational contract, the surrogate must agree to relinquish her rights to the child upon birth; the Intended Mother must show that she cannot safely maintain a pregnancy or deliver a child; and at least one of the Intended Parents must be genetically related to the child. Both sets of laws require the Surrogate Mother to submit to medical evaluation; make the surrogate the default parent if an Intended Parent who is expected to be a biological parent turns out not to be related to the child; limit the types of payment allowed; and require the Intended Parents to agree to accept any resulting child, regardless of any impairment the child may have. Recruitment fees for Traditional Surrogates are prohibited.

- Texas

Texas Law

Texas’s law is modelled after Part 8 of the Uniform Parentage Act of 2002. A Gestational agreement must be validated by the court. It is against the law for the gestational mother to use her own eggs. To be a Surrogate Mother, she must have had at least one prior pregnancy and delivery. She will maintain control over all health-related decisions during the pregnancy. The Intended Mother must show that she is unable to carry a pregnancy or give birth. The Intended Parents must be married and must undergo a home study. There is a residence requirement of at least 90 days for either the gestational mother or the Intended Parents. An agreement that has not been validated is not enforceable, and parentage will be determined under the other parts of Texas’s Uniform Parentage Act.

- Virginia

Virginia Law

Virginia requires pre-authorization of a contract by a court. If the contract is approved, then the Intended Parents will be the legal parents. If the contract is voided, the Surrogate Mother and her husband, if any, will be named the legal parents and the Intended Parents will only be able to acquire parental rights through adoption. If the contract was never approved, then the surrogate can file a consent form relinquishing rights to the child. But if she does not, the parental rights will vary based on whether either of the Intended Parents have a genetic relationship to the child. Depending on the circumstances, they may need to adopt in order to obtain parental rights. Notwithstanding all of the above, if the surrogate is the genetic mother, she may terminate the contract within the first six months of pregnancy.

Virginia’s requirements for court approval include: a home study; a finding that all parties meet the standards of fitness applicable to adoptive parents; the surrogate must be married and have delivered at least one prior live birth; the parties must have undergone medical evaluations and counselling; the Intended Mother must be infertile or unable to bear a child; and at least one Intended Parent must be genetically related to the child. The Intended Parents must accept the child regardless of its health or appearance. The surrogate retains sole responsibility for the clinical management of the pregnancy.

During the approval proceedings, the court must appoint counsel for the surrogate and a guardian ad litem to represent the interests of any resulting children. The court’s approval of assisted conception under the contract is effective for twelve months. Compensation beyond reasonable medical and ancillary costs is not allowed. Recruitment fees are punishable as a misdemeanour, and the parties may collect damages from the facilitator or agency. The law also provides for an allocation of costs when a non-validated contract is terminated under various circumstances.

- Alabama

- Alaska

- Arizona

Arizona Law

Arizona Statute forbids “surrogate parent contracts”, whether they are Traditional or Gestational. It provides that in a surrogacy situation the surrogate is the legal mother of the child or children and, if she is married, her husband is the father. However, the Arizona Court of Appeals, a court of intermediate jurisdiction, ruled in 1994 that the parentage presumption was rebuttable as to the Intended Mother.

- Arkansas

- Colorado

- Connecticut

- Delaware

- District of Columbia

- Georgia

- Hawaii

- Idaho

- Illinois

- Indiana

- Iowa

- Kansas

- Kentucky

- Louisiana

- Maine

- Maryland

- Massachusetts

- Michigan

- Minnesota

- Mississippi

- Missouri

- Montana

- Nebraska

- Nevada

- New Hampshire

- New Jersey

- New Mexico

- North Carolina

- North Dakota

- Ohio

- Oklahoma

- Oregon

- Pennsylvania

- Rhode Island

- South Dakota

- Tennessee

- Utah

- Vermont

- Washington

- West Virginia

- Wisconsin

- Wyoming

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