The first surrogacy contract waswritten in 1980 by the Michigan lawyer Noel Keane. From that moment on, hecontinued his work with surrogacy through his fertility clinic, until he createdthe contract that lead to the so-called Baby M case.
Baby M became the first American court ruling favorable to thevalidity of surrogacy arrangements. The surrogate , who was the biological motheras well, refused to cede custody to the intended parents . However, thecourt found it in the best interest of the child to award custody to thecommissioning parents.
Over the past dozen years, the oldest surrogate mother gave birth to her owngrandchild.
Broadly speaking, we can classify the US states into three groups according totheir level of laxity:
This group of US states is characterized by the fact that their statutes includesurrogacy as a permitted fertility treatment, some with more detailedspecifications than others.
Some are significantly tolerant with surrogacy arrangements and welcome allfamily types without restrictions. In fact, here you will obtain a pre-birthorder, which means that you will be automatically acknowledged as the legalparents of the child born as result, whether you have a genetic link or not.
It is the case of California, Connecticut, Delaware, Maine, Nevada, NewHampshire, District of Columbia and Washington D.C.
There are also states with an explicit law that is favorable but establishessome restrictions regarding surrogacy arrangements.
For instance, somerequire 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.
A great majority of US states do not mention or make reference to surrogacyarrangements 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 thecourts are generally favorable to surrogacy agreements, and for this reasonthey can be considered surrogacy-friendly as well.
For example, Oregon and Rhode Island are popular destinations, oftenconsidered as safe as California, given the number of advantages that theyoffer for intended parents.
In other states, the birth order can only include the name of the geneticfather. In such case, the intended mother would have no alternative but toadopt the child of her husband or partner (if it is a same-sex couple). In comecases, parentage is established through a pre-birth order, but this formalitycan vary greatly from court to court.
It is the case of Alabama, North Carolina, South Carolina, Colorado, SouthDakota, Georgia, Hawaii, Kansas, Kentucky, Maryland, Massachusetts,Minnesota, Missouri, New Mexico, Ohio, Oklahoma, Pennsylvania, Vermont,and Wisconsin.
We include in this group all the states where surrogacy is not safe to someextent.
For example, is it possible that case law is insufficient as to be sure if thecourts are favorable to surrogacy arrangements or not.
Sometimes, it is thecase of states where pre-birth orders are dependent on the existence of agenetic link between the parents and the child. It might also occur that thelaw establishes that surrogacy arrangements are null and void, as in Indianaor Nebraska.
For this reason, commissioning parents wishing to travel to one of thesestates are strongly recommended to proceed with caution, and check carefullywhether they meet all the requirements established by law.
Some examples are Alaska, Arizona, Idaho, Indiana, Iowa, Mississippi,Montana, Nebraska, Tennessee, Virginia, and Wyoming.
States where surrogacy is banned and/or punished
First of all, it should be noted that there is no US state where surrogacy iscompletely prohibited. However, the ones included here are totallyunadvisable.
In Louisiana, surrogacy arrangements are so restricted that it is limited to onlymarried heterosexual couples. In Michigan, New Jersey and New York onlyaltruistic surrogacy is allowed.
In fact, in these states, surrogacy arrangements are considered a criminaloffence.
In accordance with the laws of New York, for example, anyone involved in asurrogacy arrangement is subject to a fine of up to $10,000. Furthermore, anyperson who is willing to or acts as an intermediary in a surrogacy arrangementwill 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 apenalty of up to one year imprisonment.
Under United States law, US citizenship is automatically granted to anyoneborn 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 frombirth regardless of his/her parents. In the opposite case, which is to say, US intended parents doing surrogacyoverseas, the child will acquire US citizenship from his/her parents.
According to the INA (Immigration and Nationality Act), specifically thestatutory transmission requirements 301 and 309 therein, at least one USintended parent (either the mother or the father) must have a genetic linkwith the child for he or she to acquire US citizenship at birth.