There are no federal laws regulating surrogacy in the United States, yet each state has its own set of laws that touch upon this topic. California, Connecticut, Delaware, Maine, New Hampshire, Nevada, Oregon and Rhode Island are all considered surrogacy friendly states. They typically allow compensated and uncompensated surrogacy agreements and generally grant pre-birth orders that address parentage rights for the baby. California is a state that permits the practice of surrogacy in all its variations, also including a detailed set of laws that protect the intended parents and the surrogate. On the opposite side of the spectrum, there’s also a couple of states that prohibit this practice. These include the District of Columbia (Washington D.C.), Michigan, New Jersey, New York and Washington. They don’t recognize or enforce surrogacy contracts, do not grant pre-birth orders and compensated agreements go against state laws which may be subjected to fines or crime penalties. For instance, in New York an individual can be fined anywhere between $500 – $10,000. The remaining states are considered to be in the gray area with varying regulations depending on different factors, such as how only married couples can participate in surrogacy.
Legal issues surrounding this practice question the “true” parent of the child. There have been occurrences where surrogates change their mind after delivery and refuse to give up the baby. Thus putting the intended parents in a difficult position. The cost of gestational surrogacy, the most popular one in the United States, can cost as much as $100,000. There are medical expenses that are incurred and the question of who’s responsible for these expenses arise. Many health insurance policies specifically exclude maternity coverage for surrogates. Due to all these challenges, it’s essential to hire an surrogacy attorney to make sure that the partaking parties are well protected throughout the entire legal surrogacy process. Lawyers will explain local surrogacy laws and regulations to ensure that everything is legal. Attorneys for all parties will be present to negotiate all terms and agreements for the surrogacy contract. For example, they can negotiate the surrogate’s base compensation, specify what actions are to be taken in case of emergencies/complications and additional payments (e.g. maternity clothes). They will also help establish parental rights for the intended parents as early as possible in case the surrogate decides to change her mind about giving the child up. Due to the complexity of surrogacy, it’s highly advised to seek a lawyer knowledgeable in the field of surrogacy law.
To learn more about the surrogacy, or to seek counsel during a surrogacy process, please do not hesitate to contact Evie P. Jeang, Managing Partner of Ideal Legal Group and Founder of Surrogacy Concierges.