Surrogacy provides options to those who need to take a different course than traditional pregnancy for building their families. It’s a crucial option for individuals or couples with fertility issues and gay couples, but the process can be somewhat confusing depending upon where you live.
The law governing parentage is a state law issue, and surrogacy falls under parentage law. Therefore, there are no federal laws regulating surrogacy, and the process is solely dictated by various state laws. States fall into several categories regarding surrogacy law. Some have enacted specific laws to govern and regulate the process, some have laws established by court decisions regarding the process, and some states have no law either allowing or prohibiting the process. Whether a state is “surrogacy friendly” depends on both its surrogacy law, if any, and its other parentage law to the extent it facilitates the successful enforcement of surrogacy arrangements and the ultimate establishment of the parties’ intended parentage. Regardless of the presence or absence of law, surrogacy can be successfully accomplished in virtually all states subject to each state’s unique law. Only one state still expressly prohibits and criminalizes surrogacy.
Numerous states (and Washington D.C.) statutorily recognize surrogacy or have favorable court rulings. Some states included on this list are:
- Rhode Island
- New Hampshire
- New York
- New Jersey
These states (and the District of Columbia) generally allow compensated and uncompensated surrogacy agreements and grant either pre- or post-birth orders successfully establishing the legal parentage of the intended parents regardless of sexual orientation, genetic relationships and marital status.
Fortunately, this short list has varying degrees of inhospitability. Louisiana only allows surrogacy for a married couple using their own sperm and egg. Arizona has a court decision that casts some doubt on the ultimate parentage of the process. Nebraska has a chilly view of surrogacy, and Michigan is the last state that actually prohibits and criminalizes surrogacy by statute. Those who violate the state laws in Michigan face fines and criminal charges.
Minnesota and most of the rest
Each state is different, but Minnesota is essentially a surrogacy-friendly state, as parentage in both gestational and traditional surrogacies can be successfully established, although it requires the ongoing and unwavering cooperation of a traditional surrogate to do so. If a traditional surrogate residing and delivering in Minnesota ultimately contests the process, she has a very good chance of succeeding and retaining her parentage over the resulting child. Gestational surrogacy, however, is an extremely stable and reliable process. In fact, a state-wide administrative court procedure bulletin distributed to every county court administrator in Minnesota sets forth the procedure to be followed in the courts to establish parentage in all surrogacy matters. Surrogates may also receive reasonable compensation in Minnesota. Moreover, same-sex and LGBTQ-intended parents also have the same legal rights as opposite-sex couples. Notwithstanding this positive environment for surrogacy, the process is still complex when navigating state parentage laws affecting surrogacy and determining legal parentage.
The good news is that experienced Minnesota surrogacy attorneys have helped many hundreds of couples and individuals successfully complete this journey for decades. Knowledgeable lawyers can help you understand the applicable laws and any risks that may arise during the process. We draft comprehensive contracts that address substantial gaps in the law so your parenting rights are protected.