State-by-State Laws on Surrogacy for Gay Parents

With the vastness of the United States, it is not surprising that many of its laws, including surrogacy laws vary from state to state. There are no federal laws governing surrogacy for gay parents. State laws on this matter are either inclusive, nonexistent or prohibitive.  Some states are considered to be “surrogacy-friendly” and may be more willing to allow same-sex couples to become intended parents, while others are not. States that allow gay parents who have signed a surrogacy contract to be named as legal parents once the child is born are considered to be some of the friendliest states for surrogacy for gay parents. Here, we will examine the laws on surrogacy for gay parents in each state.

Very Friendly Towards Surrogacy for Gay Parents:

• California– May be the most favorable state in its laws regarding surrogacy for gay parents, be they partners, individuals or married couples. Parents can choose to be listed as mother, father or parent on the baby’s birth certificate.
• Connecticut– Intended parents are considered the legal parents of the child regardless of their sexual orientation or marital status.
• Delaware- Under Delaware’s Uniform Parentage Act, surrogacy contracts are upheld in court, making the surrogacy process fairly easy for heterosexual and gay intended parents.
• District of Columbia– DC’s Code upholds surrogacy agreements and pre-birth orders and are inclusive of gay parents.
• Maine- The Maine Parentage Act upholds pre-birth orders for all intended parents, heterosexual or gay.
• New Hampshire- Very permissive updated laws supporting intended parents regardless of sexual orientation or marital status.
• New Jersey – Gestational Carrier Agreement Act allows for post-birth orders for same sex parents.
• Nevada- Allows pre-birth orders for all intended parents in gestational surrogacy, regardless of sexual orientation or marital status.
• Oklahoma- Oklahoma recently passed a surrogacy law that allows legalized surrogacy but requires “pre-Conception” orders before an embryo transfer. Use of a reputable surrogacy agency such as Simple Surrogacy is critical to getting the steps correct for the surrogacy. Both gay and heterosexual parents can use the law.
• Rhode Island – Currently no laws governing surrogacy, but a proposed Uniform Parentage Act would protect the rights of all intended parents, regardless of marital status or sexual orientation.
• Texas- Texas state law supports gestational surrogacy contracts for married heterosexual and gay intended parents. Both parents go right on the birth certificate at birth and are listed as Parent and Parent. Some singles can also be listed on the birth certificate right at birth. Using an agency such as Simple Surrogacy is recommended for gay parents, as we employ attorneys who can help you to establish parentage after birth for whatever your marital situation.
• Vermont- Vermont Parentage Act allows intended parents of any sexual orientation or marital status to establish parentage prior to baby’s birth.
• Virginia- New law as of July 1, 2019 allows gay parents (single or couples) to sign surrogacy agreements.
• Washington- Uniform Parentage Act signed into law in 2019 permits both compensated and uncompensated surrogacy agreements and protects rights of gay intended parents.

Somewhat Friendly Towards Surrogacy for Gay Parents:

• Alabama- Alabama has no state surrogacy laws. Pre-birth orders have been granted for gay parents, but useage of an Agency such as Simple Surrogacy to guide you is recommended.
• Alaska- Alaska has no surrogacy laws. Its courts have issued favorable rulings regarding gay parents.
• Arkansas- A 2017 law states that a ruling declaring surrogacy agreements applies to both same-sex and heterosexual couples.
• Colorado – No state surrogacy laws. Colorado allows both parents in a gay couple to be on the baby’s birth certificate via a pre- or post-birth order, regardless of marital status.
• Florida- This state recognizes gestational surrogacy agreements for gay intended parents if the parents are married. Post-birth orders may be filed if one intended parent is genetically related to the child.
• Georgia– No state surrogacy laws, and local courts are generally favorable to pre-birth orders for gay and heterosexual couples regardless of marital status (based on county).
• Hawaii– No state laws regarding surrogacy agreements nor pre-birth orders. Post-birth orders may be granted to gay parents; pre-birth orders if one parent is genetically related to child.
• Illinois- The Illinois Gestational Surrogacy Act protects surrogacy agreements. Surrogacy for gay parents is not mentioned in the law. Post-birth orders are upheld if one intended parent is genetically related to the child.
• Kansas-– No surrogacy laws, courts generally favorable towards surrogacy. Pre-birth orders issued for biological intended parent(s) only.
• Kentucky– No surrogacy laws, courts generally favorable. Pre-birth orders upheld on case-by-case basis.
• Maryland- Law supports gestational surrogacy agreements, and pre-birth orders for intended parents regardless of marital status or sexual orientation.
• Massachusetts—Has gestational surrogacy statutes. Pre-birth orders upheld regardless of parents’ sexual orientation.
• Minnesota- –– No state surrogacy laws, pre-and post-birth orders have been upheld in court for parents regardless of sexual orientation or marital status.
• Mississippi- –– No surrogacy laws, courts generally favorable towards pre-birth orders for gay parents.
• Missouri-– No state surrogacy laws, post-birth orders have been upheld in court for parents regardless of sexual orientation or marital status.
• Montana- No gestational surrogacy laws, courts show greater support to gay parents when one is genetically related to child.
• New Mexico – New Mexico Uniform Parentage Act says that gestational surrogacy contracts are not permitted or prohibited. Gay parents are supported.
• North Carolina—No state surrogacy laws, courts generally favorable to married gay parents and especially if one parent is genetically related to child.
• North Dakota- Courts are more favorable towards gay intended parents if one is genetically related to the child.
• Ohio –State law upholds gestational surrogacy contracts. Pre-birth orders upheld on case-by-case basis. Courts are more favorable to married gay parents.
• Oregon– No state surrogacy laws, courts vary on pre-birth orders.
• Pennsylvania -No state surrogacy laws. Pre-birth orders vary by county and have generally been favorable towards gay parents.
• South Carolina- No surrogacy laws, local courts generally favorable towards pre-and post-birth orders regardless of marital status or sexual orientation (on a case-by-case basis).
• South Dakota- No state surrogacy laws, courts favorable towards pre-birth orders regardless of intended parents’ marital status or sexual orientation.
• Utah- Supports gestational surrogacy contracts and pre-birth orders between married heterosexual and gay parents.
• West Virginia- Courts support pre-birth orders for married heterosexual and gay parents.
• Wisconsin- Courts have upheld surrogacy agreements and supported pre-birth orders. Support for gay parents varies by county.

Less Friendly Towards Surrogacy for Gay Parents

• Arizona- Gestational surrogacy contracts are prohibited by law. Biological parent of gay couple may obtain pre-birth order.
• Idaho – Idaho has no state laws supporting surrogacy. The state will grant adoptions to gay parents, regardless of marital status, but one intended parent must be genetically related to child. The other intended parents must file for second parent adoption.
• Indiana- Gestational surrogacy contracts prohibited by law; pre-birth orders vary by court.
• Iowa – The Iowa Supreme Court has ruled that surrogacy contracts are enforceable in the state. Biological father of a gay couple can obtain pre-birth order.
• Louisiana- Louisiana Surrogacy Bill restricts gestational surrogacy to heterosexual married couples only.
• Michigan- Michigan Surrogate Parenting Act prohibits surrogacy contracts.
• Nebraska – Surrogacy agreements are unenforceable and surrogate must be named as a parent on a child’s birth certificate.
• New York- Surrogacy is currently prohibited by law; however, Governor Cuomo is backing a gestational surrogacy bill that would allow infertile and gay couples to use a gestational surrogate.
• Tennessee – Local laws (not state) for surrogacy agreements have been upheld. Only biological father of gay couple can obtain pre-birth order.
• Wyoming – No surrogacy laws and few legal precedents, therefore not considered friendly towards surrogacy for gay or heterosexual parents.

Regardless of the state in which you reside, Simple Surrogacy works with attorneys from around the country and can assist in facilitating surrogacy for gay parents working with surrogate mothers in various locations. Contact us today at 1-866-41-SURRO to see how we can make your parenting dreams come true!