Keeping Up with Surrogacy Law

Surrogacy law across the United States, as well as across the world, is a continually-shifting maze of anti-surrogacy and pro-surrogacy legal environments. Fortunately, Creative Family Connections recently updated their helpful 50-state map that categorizes and details surrogacy law in each of the 50 states. This is an exceptionally useful resource for anyone trying to get an idea of the legal environment of his or her state or considering another state for a gestational carrier arrangement.

Note that it is important to read beyond the simple color guide. A state like Virginia is given a “green” status because it permits surrogacy by statute. However, Virginia’s statutory requirements are onerous and exclusive of many who might be interested in surrogacy. The state’s Assisted Conception Statute requires that intended parents must be a married heterosexual couple, compensation may not exceed medical and ancillary expenses, and the gestational carrier cannot give her consent until 3 days after the birth of the child (there is an alternative path avoiding this requirement, but it requires a home study and court approval of the gestational carrier agreement).

In contrast, Colorado is given a “blue” status and termed a “vacuum state” because of the absence of any surrogacy-specific law. However, without regulations prohibiting or even restricting surrogacy, gestational carrier arrangements have flourished in the state for the benefit of heterosexual couples as well as same-sex couples and singles alike. In Colorado, gestational carriers can be compensated beyond medical expenses, and pre-birth orders are routinely granted confirming the parental rights of the intended parents in a surrogacy arrangement.

Regardless of the state, it is always essential to consult a knowledgeable attorney who can advise you on the legal environment as applied to your facts and circumstances.