Why Are Surrogacy Laws So Complex?
One of the most surprising aspects of starting a surrogacy arrangement, whether as a gestational carrier or an intended parent, is that laws regarding surrogacy are complex and varied. Surrogacy law is not nationwide in the United States. It is up to individual states to set laws, statutes, and/or guidance on what is and what is not allowed pertaining to surrogacy.
On the one hand, many states in the last decade or so have made significant progress, with laws firmly and clearly outlining the legality of paid surrogacy contracts. These laws protect the rights and wishes of both surrogates and intended parents and are highly beneficial to the ease and straightforwardness of an arrangement. On the other hand, there are numerous states in the country that either have no laws in place that relate to surrogacy or have laws that prohibit certain aspects of surrogacy or simply all surrogate-related endeavors.
So, why is this the case and what can we do about it? If you live in a state that is not friendly to surrogacy, but you need to work with a surrogate in order to build your family as you desire, what are your options? We wanted to help provide some clarity on surrogacy law as it stands today and what modern family building advocates are doing to improve the legal standing of surrogacy contracts across the country.
Why are some states unfriendly to surrogacy?
From an agency perspective, we tend to define a state as being unfriendly to surrogacy if it has laws or statutes in place that directly prohibit aspects of surrogacy arrangements. For example, compensated surrogacy is considered illegal in the state of Michigan.
States are also considered unfriendly toward surrogacy if they have a distinct lack of legal clarity toward what is and isn’t allowed within a surrogacy contract. Surrogacy arrangements are possible in these states, but unpredictable. If a state simply has no laws in place, it’s best to work with an agency experienced in third-party reproduction legal representation to help all parties navigate a successful surrogacy experience.
The reason why some states prohibit or seemingly discourage surrogacy can stem from a few different observations. The first is that there may be a historically low demand for surrogacy, so these arrangements have not been largely pursued, which means there isn’t a strong push for surrogacy-friendly laws. It’s not that the need for a surrogate is less real in these places, it’s just that there has been less of a push for modern family building advocacy.
Changes to laws take time, popular support, and at least some form of lobbying. If you are interested in becoming a surrogacy advocate, we encourage you to connect with RESOLVE, The National Infertility Association.
What if I live in a state that is not surrogacy friendly?
For the vast majority of states in the country, there are ways to work with a gestational surrogate even if your state does not have laws that support surrogacy. For some couples and individuals, this means working with a surrogate carrier who may not live in your state. For most, this means connecting with a reputable surrogacy agency and legal representation who can help navigate the surrogacy path.
Questions? Contact Fertility Source Companies.