Surrogacy in the USA – Is It Legal in All 50 States?

By Babygest Staff

Last Update: 10/18/2019

The United States is the most experienced country when it comes to dealing with surrogacy arrangements. In this sense, the main advantage of doing it in this country is that it offers the widest range of legal advantages and guarantees, whilst at the same time is the most expensive one.

It should be noted that there is no federal law governing surrogacy across the country, but the regulations vary by state.

Provided below is an index with the 8 points we are going to expand on in this article.

History

The first surrogacy contract was written in 1980 by the Michigan lawyer Noel Keane. From that moment on, he continued his work with surrogacy through his fertility clinic, until he created the contract that lead to the so-called Baby M case.

Baby M became the first American court ruling favorable to the validity of surrogacy arrangements. The surrogate, who was the biological mother as well, refused to cede custody to the intended parents. However, the court found it in the best interest of the child to award custody to the commissioning parents.

Five years later, in 1985, a woman became the first in carrying a baby for someone else via gestational surrogacy. In 1990, the Calvert v. Johnson case contributed to the development of case law in California. This time, the gestational carrier refused to give up the baby to the intended parents. After suing her for custody, the court upheld their parental rights.

Over the past dozen years, the oldest surrogate mother gave birth to her own grandchild, while in 2005, a 58-year old gestational carrier gave birth to her own twin granddaughters.

What are pre- and post-birth orders?

Pre-birth and post-birth orders are essential items in every surrogacy arrangement taking place in the United States, as it determines who the legal parent(s) of the child born via surrogacy is. They remove any rights or obligations from the surrogate to the baby.

A birth order is, in simplest terms, a legal documents that assigns parentage to a child. We can distinguish between pre- and post-birth orders depends on the moment when the birth order is given:

Pre-birth order: Can be started in the 4^th month of pregnancy, and signed by the 7^th month.
Post-birth order: Commissioning parents are seen in court on the 3^rd or 5^th day following birth.

Several US states are considered pre-birth order states, including California, Nevada, Utah, Colorado, Illinois, Wisconsin, Georgia, Maryland, Delaware, Pennsylvania, and Connecticut. Post-birth orders are issued in Florida, Missouri, and Vermont.

As regards pre-birth orders, it is important to understand that they are not effective until the birth occurs, in spite of being issued by the court prior to the birth. However, and especially in the case of foreign intended parents, it offers some peace of mind.

In post-birth order states, there is typically a court hearing held after the birth of the child, and intended parents might be required to attend. Sometimes, however, court hearings are required in states offering pre-birth orders as well.

Surrogacy laws by state

Broadly speaking, we can classify the US states into three groups according to their level of laxity:

Surrogacy-friendly states with an explicit law
Surrogacy-friendly states without a law
States where surrogacy is allowed with limitations
States where surrogacy is banned and/or punished

Surrogacy laws by state map

Surrogacy-friendly states with an explicit law

This group of US states is characterized by the fact that their statutes include surrogacy as a permitted fertility treatment, some with more detailed specifications than others.

Some are significantly tolerant with surrogacy arrangements and welcome all family types without restrictions. In fact, here you will obtain a pre-birth order, which means that you will be automatically acknowledged as the legal parents of the child born as result, whether you have a genetic link or not.

It is the case of California, Connecticut, Delaware, Maine, Nevada, New Hampshire, District of Columbia and Washington D.C.

There are also states with an explicit law that is favorable but establishes some restrictions regarding surrogacy arrangements. For instance, some require couples to be married in order for their names to appear on the pre-birth order.

Arkansas, Florida, Illinois, North Dakota, Texas, Utah, or West Virginia are some examples.

Green light states for surrogacy

Surrogacy-friendly states without a law

A great majority of US states do not mention or make reference to surrogacy arrangements in their statutes. This means, thus, that the provision of pre-birth or post-birth orders depends on the final decision of the court.

However, if we analyze the case law available to date, we can see that the courts are generally favorable to surrogacy agreements, and for this reason they can be considered surrogacy-friendly as well.

For example, Oregon and Rhode Island are popular destinations, often considered as safe as California, given the number of advantages that they offer for intended parents.

In other states, the birth order can only include the name of the genetic father. In such case, the intended mother would have no alternative but to adopt the child of her husband or partner (if it is a same-sex couple). In come cases, parentage is established through a pre-birth order, but this formality can vary greatly from court to court.

It is the case of Alabama, North Carolina, South Carolina, Colorado, South Dakota, Georgia, Hawaii, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, New Mexico, Ohio, Oklahoma, Pennsylvania, Vermont, and Wisconsin.

Surrogacy-friendly states without a law

States where surrogacy is allowed with limitations

We include in this group all the states where surrogacy is not safe to some extent.

For example, is it possible that case law is insufficient as to be sure if the courts are favorable to surrogacy arrangements or not. Sometimes, it is the case of states where pre-birth orders are dependent on the existence of a genetic link between the parents and the child. It might also occur that the law establishes that surrogacy arrangements are null and void, as in Indiana or Nebraska.

For this reason, commissioning parents wishing to travel to one of these states are strongly recommended to proceed with caution, and check carefully whether they meet all the requirements established by law.

Some examples are Alaska, Arizona, Idaho, Indiana, Iowa, Mississippi, Montana, Nebraska, Tennessee, Virginia, and Wyoming.

Yellow light states for surrogacy

States where surrogacy is banned and/or punished

First of all, it should be noted that there is no US state where surrogacy is completely prohibited. However, the ones included here are totally unadvisable.

In Louisiana, surrogacy arrangements are so restricted that it is limited to only married heterosexual couples. In Michigan, New Jersey and New York only altruistic surrogacy is allowed.

In fact, in these states, surrogacy arrangements are considered a criminal offence.

In accordance with the laws of New York, for example, anyone involved in a surrogacy arrangement is subject to a fine of up to $10,000. Furthermore, any person who is willing to or acts as an intermediary in a surrogacy arrangement will be considered guilty of a felony, and would be fined anyway.

In Michigan, intended parents can be fined with up to $50,000, and imposed a penalty of up to one year imprisonment.

Red light states for surrogacy

Cost

As mentioned above, the price of surrogacy in the USA is the main con of this popular surrogacy destination — the total cost of a complete surrogacy process can range from USD $120,000 to $270,000 (GBP £110.000-£240,000 approximately).

The following are the factors that often increase the overall price of surrogacy in the USA:

Egg and/or sperm donation
US state where it is done
Number of IVF attempts necessary to achieve a pregnancy in the gestational carrier
Additional techniques (e.g. PGD/PGS)
Conditions established by the surrogate
Surrogacy agency fees
Medical insurance coverage
Travel expenses, if necessary

Surrogacy expenses in the USA

To sum up, one should keep in mind that pregnancy is not the result of a mathematical formula, but a natural process subject to numerous mishaps throughout the entire process.

If you need a gestational surrogate to start a family, we recommend that you find out about the prices beforehand to avoid any surprises when the moment of truth arrives. In addition, understanding the budget is essential before making a decision.

Medical insurance coverage

Given that health care facilities in the USA are operated by private sector businesses, intended parents have to make sure that they hire insurance coverage for both the surrogate and the baby. It goes without saying that this causes the price of the treatment to be way higher.

For this reason, one should take the following into account:

Intended parents are strongly recommended to ensure that the insurance of the gestational carrier covers surrogacy. If not, they must add the procedure to the GS's insurance policy, keeping in mind several factors, including but not limited to, multiple births, baby incubation, and neonatal surgery.
Life insurance for the surrogate is also necessary, which would add up to USD $700 (GBP £540) to the cost of surrogacy.
Insurance for the newborn is also necessary for intended parents from outside the USA.

For instance, in cases of premature birth, the price can skyrocket due to the need of an incubator, which at the same time would translate into more days at the hospital. This is the reason why knowing for certain what is included in your insurance plan is crucial.

Deductibility of surrogacy expenses

Many US patients who begin the surrogacy journey in their home country wonder whether the medical expenses derived from surrogacy are tax deductible. In principle, this option is only possible for heterosexual couples as long as there is a medical cause that justifies the costs of the process.

The IRS (Internal Revenue Service) applies two basic rules for medical deductions:

Medical expenses are directly relatable to the individual, spouse, or dependent.
The costs are required.

In the case of gay couples (man and man), in spite of being legally married, the court does not see a surrogate or an unborn child as qualifying for rule #1. Rule #2 does not apply either in the case of homosexual couples, even though it is not possible for them to conceive children for obvious reasons.

There is a strategy that could allow these couples to be guaranteed the deduction: a Private Letter Ruling. Through this written document, you can ask the IRS in advance to rule on the deductibility of your situation. If they rule in your favor, then you will receive deductibility.

Although there exist other options, this one seems to be the most feasible one. Still, all of them take a considerable amount of time which many couples undergoing surrogacy do not have.

Birthright citizenship

Under United States law, US citizenship is automatically granted to anyone born within and subject to the jurisdiction of the United States of America. This means that children born in the USA via surrogacy are US citizens from birth regardless of his/her parents.

In most cases, British intended parents have to obtain an entry clearance vista stamped in their child's US passport before traveling to the UK in order to avoid any problems at border control.

In the opposite case, which is to say, US intended parents doing surrogacy overseas, the child will acquire US citizenship from his/her parents.

According to the INA (Immigration and Nationality Act), specifically the statutory transmission requirements 301 and 309 therein, at least one US intended parent (either the mother or the father) must have a genetic link with the child for he or she to acquire US citizenship at birth.

Are babies born in the US automatically citizens?

FAQs from users

Is surrogacy permitted in Florida?

By Mark P. Trolice MD, FACOG, FACS, FACE (gynecologist).

Absolutely! Florida is one of the best states in the US to undergo the process of surrogacy egg donation and adoption by protecting the best interest of the intended parent(s).

Is sex election of the baby allowed in United States?

By Mark P. Trolice MD, FACOG, FACS, FACE (gynecologist).

Selecting the gender of the embryos is a legal procedure in USA and is very easy to carry out by means of an embryo biopsy, followed by a type of complete chromosome screening as "PGD-AS" (Preimplantation Genetic Diagnosis of Aneuploidy Screen). To do this, several cells are removed from the outer layer of the embryo. The next step is to vitrify (freeze) the embryos while the extracted cells are analyzed in the laboratory. In this step, all the chromosomes of the embryos(s) are examined, which in turn will allow the sex of the embryos to be determined so that patients will finally have a chromosomally normal embryo of the desired gender.