To provide an overview of surrogacy law in America we should look back to its origins as many of you know much of American law is derived from English common law. One of the critical functions of paternity law and therefore surrogacy law is to determine which adults will be legally and financially responsible for children. The end goal of every parent embarking on surrogacy is that they can establish legal parentage to their child.
In the United States parentage and surrogacy law fall under the umbrella of family law which is governed by each state individually. While paternity and surrogacy laws vary from state to state the uniform parentage act or UPA and it’s later amendments are the prevailing method of establishing legal parentage in each state.
The UPA was created in 1973 revised in 2002. Since 1973 there have been numerous developments both legally and scientifically that have an impact on issues of parentage. The 2002 UPA addresses many of these modern developments but the current version of the UPA has not been adopted in all states. Some states elected to ratify only its original version other states have never ratified any version of the UPA. States that adapted only a portion of the UPA or have not adopted the UPA at all. Parentage must be established through paternity and maternity pleadings and intended parentage arguments rooted in case law. Of course, the primary reason that parentage and surrogacy laws can vary dramatically in any given state is due to the rapid development of assisted reproductive technologies or ART. For decades the general presumptions of parentage within the original UPA made sense until the advent of IVF led to an expansion of possibilities of how families can be formed. These original presumptions include paternity based on precise moments in time or particular conduct such as giving birth, having biological ties, marriage to the birth mother at the time of conception of birth etc. However, for children born through new medical technologies, these illegal presumptions are not applicable and neither genetics nor gestation provides a consistent answer as to who should assume legal parental obligations. Thus these developments present new challenges to our traditional legal framework regarding parentage.
In 2008 the American Bar Association section of family law’s Committee on reproductive and genetic technology drafted the model Act governing assisted reproductive technology. The model act seeks to give participants of assisted reproduction and their children clear legal rights obligations and protections. The committee hopes to address societal concerns about assisted reproduction such as clarifying issues of health insurance coverage for the treatment of infertility and establishing legal standards for informed consent reporting and quality assurance. The sections relating to parentage were intended to be consistent and to track corresponding provisions of the 2002 UPA. However, to a BAS 2008 model act has failed to gain traction in the states and no state has adopted it. So just as there are no federal paternity laws that apply to every state there are no national laws regarding surrogacy in America. Therefore America’s 50 states constitute a patchwork of different laws related to both parentage and surrogacy. It is important to keep in mind that the governments of each state may advance its parentage and surrogacy laws based upon policy considerations that it deems most important. In that regard, social policy considerations are critical on both the federal and state level.
The light of the Defense of Marriage Act in the Supreme Court’s decision in obergefell V Hodges last year( 2015 ). After the Supreme Court’s ruling same-sex marriage is now the law of the land in the United States. As Justice Kennedy remarked in his opinion the children of same-sex couples would no longer be relegated to a more difficult and uncertain family life but to the Supreme Court’s decision is sure in a new world where same-sex couples can conceive children via a surrogate in each state and easily establish their paternity to their offspring, unfortunately, NO. States can still impose legal restrictions on IRT that the disadvantage of same-sex couples, for instance, States may use gendered language and their paternity statutes to determine who will be recognized as the parent when surrogates or donors are used to conceive. Alabama law, for instance, stipulates that any child born
to a married woman by means of artificial insemination shall be deemed a legitimate natural child of the woman and the woman’s husband if the husband consents in writing. This is problematic for two dad families whose primary method for having children is gestational surrogacy. As we’ve discussed one of the critical functions of family law is to determine parentage and specifically which adults will be legally responsible for children. Unfortunately, the Supreme Court’s decision last year did not address this, as a result, many states continued to advance their own social policy agenda and the laws of each state play a critical role and whether other individuals may travel to a particular state for purposes of reproductive care. The differences in state law in the U.S goes to show that each state has its own intrinsic values and social policy agenda and that there is a general lack of uniformity between the states. For instance, while some states permit a wide range of surrogacy contracts others will enforce only a limited subset of such contracts. Even worse some jurisdictions will impose civil or criminal penalties. Most laws can be grouped into five categories reflecting the degree of restriction they impose ranging from most favourable to most restrictive. There are states that one holds surrogacy contracts valid and enforceable. Another has unclear are no statutes but favourable case law. Third, explicitly allows surrogacy contracts but regulate the market. Fourth have unclear or no statutes and no case law. Five hold surrogacy contracts void and unenforceable. In short, states are all over the proverbial map concerning surrogacy regulation. This map gives you just a snapshot of the different degrees of regulation of surrogacy within the United States.
District of Columbia
District of Columbia circusy contracts are unenforceable and illegal under the District of Columbia Code, in fact, the Code provides that anyone who is involved in or assists in the formation of a surrogacy contract receives a fine of up to ten thousand dollars or imprisonment of up to one year or both. As a result, gestational surrogacy contracts are not written
under DC law or with gestational carriers who live in the District of Columbia.
New York code declares unequivocally surrogate parenting contracts are hereby declared contrary to the public policy of the state and are void and unenforceable. Compensated
surrogacy contracts are illegal in New York and those in violation are subjects to fines. Uncompensated gestational surrogacy contracts are unenforceable but unlike compensated contracts, they’re not prohibited. To qualify as an uncompensated arrangement the surrogacy an arrangement must be carefully structured. The gestational carrier can receive only
those payments and reimbursements that are allowed in New York adoptions.
The Michigan surrogate parenting Act makes all surrogacy contracts or Arrangements void and unenforceable as contrary to public policy. Besides surrogacy contracts
for compensation are subject to criminal penalties. For anyone entering into a surrogacy contract, one faces a fine of up to $10,000 and up to one year of imprisonment. For anyone compensated for facilitating a surrogacy arrangement, one faces a fine of $50,000 or up to five years imprisonment.
Importantly if the baby being carried by the surrogate is born in a state where surrogacy is against the law, there are a few legal protections available to intended parents should something go wrong with the contractual relationship between the parties. Yet you only need to go to neighbouring states to find flexibility and support within the law for surrogacy
Gestational surrogacy in Illinois is permitted by statute. The statute permits intended parents to bypass the court system entirely and go straight to vital records to obtain a
the birth certificate that names them as parents. So long as all statute her requirements are met and all necessary affidavits have been filed both with the Illinois Department of Public Health and with the delivery hospital prior to the child’s birth.
California gestational surrogacy is permitted by statute in California with additional long-standing support in case law.
Gestational surrogacy is permitted in texas by statute which authorizes gestational surrogacy for married intended parents who follow the procedures specified in the statute including having their gestational carrier contract validated by a court before birth.
surrogacy law in the states the reality is that surrogacy law is always changing. Cases are regularly handed down to the lower courts and vital records offices often change practices and procedures. As many of you may recall from last year Kim Davis served as the county clerk in Kentucky and refused to issue marriage licenses to same-sex couples on the basis of her Christian beliefs. This is but one example of how jurisdictions enforcement of certain laws depends not only on the laws themselves but on the people enforcing them this is why it’s essential for intended parents to retain an attorney whose primary focus is in this practice area so that intended parents can have the peace of mind that comes with knowing their family has legal security in the state where they are pursuing surrogacy.