Legal Issues in Surrogacy: We Answer Your Questions

Surrogacy is an incredibly unique arrangement, so it’s natural to have questions about its legal aspects.

As with all other aspects of your surrogacy journey, SPS is with you every step of the wayand we’ll help guide you through this process!

Read on for answers to your most common questions.

Is surrogacy legal in the US?

There are currently no US federal laws regulating surrogacy, and surrogacy laws vary from state to state. And to make things even more complicated, state surrogacy laws keep changing and changing.

However, Surrogate Parenting Services (SPS) is based in California, where surrogacy is not only legal, but also well regulated. In fact, California is considered one of the “friendliest” states (in terms of laws and regulations) for surrogacy.

Here at SPS, we only work with surrogates who are California residents, ensuring the most legal protection for both parties.

What are the laws regarding surrogacy in different states?

There are states that are considered surrogacy-friendly, non-surrogacy friendly, and those that fall into a gray area.

Surrogacy-friendly states

Surrogacy-friendly states either have laws that recognize and allow surrogacy, or they have many favorable rulings in surrogacy cases.

In general, the intended parents can get pre-birth orders (a document establishing intended parentage[s] as the legal parents of the baby to be born) regardless of their sexual orientation, marital status, or genetic relationship to the baby. Both compensated and uncompensated surrogacy are permitted.

Non-surrogacy-friendly states

Non-surrogacy-friendly states generally do not recognize or enforce surrogacy contracts, and they have statutes or cases prohibiting compensated surrogacy.

Pre-birth orders are generally not issued in these states. Compensated surrogacy agreements or any surrogacy agreements that violate state laws may be subject to fines or criminal penalties.

Fortunately, as of February 2024, the only state in the US that is not surrogacy-friendly is Michigan. Michigan law prohibits compensated surrogacy, and individuals who enter into surrogacy arrangements (except in compassionate surrogacy cases) are subject to criminal penalties.

Gray-area states

Many states fall somewhere between surrogacy-friendly and non-surrogacy-friendly. In these states, surrogacy is permitted, but the laws are more vague, protection for surrogates and intended parents is more uncertain, and the legal process can be more complicated.

You can find a comprehensive list of all surrogacy-friendly, non-surrogacy-friendly, and “gray area” states here.

Why is California considered one of the best states for surrogacy?

The California Family Code § 7960 makes the surrogacy pregnancy process clear and simple for surrogates and intended parents.

In California, legal parental rights can be established before the child is born by filing a pre-birth order.

California has it too excellent fertility clinics, maternity hospitals, and surrogacy agencies.

Who is the legal parent of the surrogate child?

Intended parents entering into pregnancy surrogacy arrangements in California are considered legal parents (regardless of whether the child was conceived with your eggs or sperm or with donor gametes).

How does SPS guide you through the legal process?

At SPS, we have a network of trusted attorneys who specialize in third party reproductive law, and we ensure that both surrogate mother and intended parents have independent legal representation.

To obtain the pre-birth order, SPS sends the necessary information to the attorney for the intended parents around 10–12 weeks of pregnancy. This way, there is plenty of time to avoid issues if the baby is born prematurely.

Then, the lawyer will submit the documents to the court. Since this is a set judgment, the judge will review the documents to make sure everything is accurate and sign them. (There are very few, if any, courts that require physical attendance.)

Once the agreement is signed by the judge, the documents are sent to the hospital where the child will be delivered. This document is required to put the name(s) of the intended parent(s) on the birth certificate instead of the surrogate’s name.

Please note that in 33+ years, we have never had a litigation case, or parentage issue.

We hope this article has given you a clearer picture of the legal side of surrogacy, helping you feel more confident and ready to begin this incredible journey!

Learn More About Surrogacy at Surrogacy Services

Surrogate Parenting Services is proud to celebrate more than 30 years of helping make dreams come true! Founded in 1990, Surrogate Parenting Services (SPS) is a full service surrogacy agency which offers both parties an exceptionally supportive environment throughout the surrogacy relationship. We are passionate about creating ideal matches between surrogates and intended parents, so the journey is fulfilling for both parties and the future child is brought into this world in the best possible circumstances.

Do you want be a surrogate? Learn more about our Surrogacy Program online or by calling (949) 363-9525.

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