Why Is Surrogacy Not Allowed in Some States?

Surrogacy law is not uniform across the United States. Each state has its own set of laws that specify whether surrogacy is allowed or prohibited, which is unfortunate for prospective parents who live in a state that is not "surrogacy friendly". For these couples or individuals, using a gestational surrogate to build their family will require further travel as well as additional assistance from their surrogacy agency to coordinate the entire surrogacy process. This can add new financial burdens and stress, even with the help of a dedicated case manager such as those offered to prospective parents at Surrogacy America.

Many organizations are currently working to improve each state’s level of surrogacy friendliness, but it is a slow process. Even states that allow surrogacy may only allow it in certain circumstances.  For instance, a state may allow surrogacy but dictate that it must be traditional surrogacy – that is, the surrogate mother must be the biological mother of the child. Another example is that a state may allow a couple to use a surrogate but the couple must be legally married according to the laws of the resident state.

It is very important for prospective parents considering a surrogate carrier to research the laws in their home state and get in touch with a surrogacy agency to determine if an in-state or out-of-state surrogate mother will be needed. Waiting until you have already begun the surrogacy process to learn about your state laws will only lead to confusion and difficulty, and is not recommended.

Navigating surrogacy law can be tough – it is rarely straightforward in that states may allow surrogacy only in certain situations. Here are some factors that can determine whether your state allows surrogacy arrangements:

  • Surrogate compensation

  • Marital status

  • Traditional vs. gestational surrogacy

    For instance, Maryland, where Surrogacy America is headquartered, generally allows gestational surrogacy, which was approved by Maryland’s highest court in 2003. Courts in Maryland will grant a pre-birth parentage order, which allows prospective parents to have their names on their child’s birth certificate in most cases. Still, it is important that prospective parents discuss their individual situation with both their surrogacy agency and their legal representative to make sure the process will work without issue.

    If you have additional questions about the legality of surrogacy in your state, we encourage you to contact Surrogacy America.

Related Topics: Surrogacy law