Gestational Surrogacy in New Mexico - What You Need to Know

New Mexico has a statute on the books regarding surrogacy, but it leaves much to be desired by anyone interested in learning anything specific about the legality of surrogacy in the state. New Mexico Statutes Chapter 40, Domestic Affairs § 40-11A-801 states that New Mexico law does not expressly authorize or prohibit surrogacy agreements. (We know, it’s not all that illuminating.) Click here for a link to the law.

If you are thinking of becoming a parent through surrogacy or being a gestational carrier in New Mexico, there is good news. While state law does not say much, New Mexico has proved to be a supportive jurisdiction for growing families. With years of experience working on surrogacy arrangements for New Mexico clients, Trachman Law Center can provide expert counsel as you go through your surrogacy journey. We use our knowledge of the local laws and judicial practices to make sure your rights are protected and that you understand all of your options.

Who can be a gestational carrier in New Mexico?

New Mexico law does not regulate who can become a surrogate. However, local fertility clinics and matching programs generally adhere to best practices that are commonplace throughout the country. Typically, fertility clinics and matching programs in New Mexico require a gestational carrier candidate to be between 21 and 40 or so years old and to have given birth at least once before, without pregnancy or delivery complications. Clinics and surrogacy programs in New Mexico often have requirements related to BMI, citizenship or legal residency, and lifestyle (things like not smoking).

A surrogate is matched with hopeful parents—what now?

Once intended parents are matched with a gestational carrier, and the gestational carrier is medically and psychological cleared, attorneys begin drafting the surrogacy contract (called the gestational carrier agreement or “GCA”). It is highly recommended that the gestational carrier is represented by an attorney and the intended parent(s) are represented by a different attorney. Though not required by New Mexico law, this is standard procedure, the most effective way to reduce the possibility of a conflict of interest, and the best course to protect all parties. The attorneys will negotiate the terms of the contract and finalize an agreement that all parties are comfortable with.

What does the Gestational Carrier Agreement include?

Typically, a GCA will address the risks and responsibilities of each party, reimbursement and compensation for the gestational carrier, and how the parents will cover the gestational carrier’s medical expenses (this is typically through a health insurance policy), among other issues.

It is also crucial that the GCA reflect consensus on how the parties will approach difficult situations, including whether the termination or reduction of the pregnancy would ever be appropriate (if the surrogate’s life or health was in danger, for instance).

How do parents protect their legal rights in New Mexico?

The GCA will also outline the process for obtaining legal recognition of the parents of the child. In New Mexico, this can be done through a pre-birth parentage petition, resulting in a pre-birth order (“PBO”). A PBO is an order issued by a judge which will declare that the intended parents are the legal parents of the child at the time of birth, and that the gestational carrier, her spouse or partner (if applicable), and any donors are not legal parents of the child or have any financial or other responsibility for the child.

Attorneys will draft the petition for a PBO with the required documentation and submit it to the appropriate court, generally during the second trimester of pregnancy. Many judges do not require a hearing to obtain a PBO in New Mexico.

Historically, in some New Mexico jurisdictions, initial birth certificates named the gestational carrier as the mother. This is, of course, not reflective of the fact that the intended parents are the legal parents of the child. However, this practice has changed in New Mexico, and Vital Records offices follow PBOs to name intended parents, and not the gestational carriers, on the birth certificate directly. Trachman Law Center will work with the courts and state administrative offices to ensure that the intended parents are named on the birth certificate.

Do parents need to do anything else to secure their parental rights in New Mexico?

Usually not. In most situations, a PBO is sufficient in New Mexico courts to establish legal parentage for intended parents. This means that in most cases, intended parents working with a New Mexico gestational carrier do not need to undergo an adoption to further protect their parental rights.

Surrogacy in New Mexico