Surrogacy is an incredibly unique arrangement, so it’s natural to have questions about the legal aspects of it. 

As with every other aspect in your surrogacy journey, SPS is with you every step of the way, and we will help guide you through this process! 

Read on for answers to your most common questions. 

Is surrogacy legal in the U.S.?

There are currently no federal laws in the U.S. regulating surrogacy, and surrogacy laws vary state by state. And to make things even more complicated, state surrogacy laws are constantly evolving and changing.

However, Surrogate Parenting Services (SPS) is based in California, where surrogacy is not only legal, but also well-regulated. In fact, California is considered one of the “friendliest” states (in terms of laws and regulations) for surrogacy. 

Here at SPS, we only work with surrogates who are California residents, which ensures the most legal protection for both parties.

What are the laws regarding surrogacy in different states?

There are states that are considered surrogacy-friendly, non-surrogacy friendly, and those that fall into a gray area. 

Surrogacy-friendly states

Surrogacy-friendly states either have statutes recognizing and permitting surrogacy, or they have had many favorable rulings in surrogacy cases. 

Generally, intended parents can obtain pre-birth orders (a document that establishes the intended parent[s] as the legal parents of the baby to be born) regardless of their sexual orientation, marital status, or genetic relationship to the baby. Compensated and uncompensated surrogacy are both permitted. 

Non-surrogacy-friendly states

Non-surrogacy-friendly states generally do not recognize or enforce surrogacy contracts, and they have statutory or case law which prohibits compensated surrogacy.

Pre-birth orders are generally not granted in these states. Compensated surrogacy agreements or any surrogacy agreement that goes against the state’s laws may be subject to fines or criminal penalties.

Fortunately, as of February 2024, the only non-surrogacy-friendly state in the U.S. is Michigan. Michigan law forbids compensated surrogacy, and individuals who enter into surrogacy arrangements (other than compassionate surrogacy cases) are subject to criminal penalties.

Gray-area states 

Several states fall somewhere between surrogacy-friendly and non-surrogacy-friendly. In these states, surrogacy is permitted, but the laws are more ambiguous, protection for surrogates and intended parents is more uncertain, and the legal process may be more complicated. 

You can find a comprehensive list of all the surrogacy-friendly, non-surrogacy-friendly, and “gray area” states here.

Why is California considered one of the best states for surrogacy?

The California Family Code § 7960 makes the gestational surrogacy process clear and simple for surrogates and intended parents. 

In California, legal parental rights can be established before the child is born by filling out a pre-birth order. 

California also has excellent fertility clinics, maternity hospitals, and surrogacy agencies.

Who is the legal parent of a surrogate child? 

Intended parents who enter into gestational surrogacy arrangements in California are considered the legal parents in every sense (regardless of whether the child was conceived with your eggs or sperm or with the use of donor gametes).

How does SPS guide you through the legal process?

At SPS, we have a network of trusted attorneys who specialize in third party reproductive law, and we make sure that both the surrogate mother and intended parents have independent legal representation. 

To obtain the pre-birth order, SPS sends the necessary information to the attorney for the intended parents at around 10–12 weeks of pregnancy. This way, there is plenty of time to avoid issues if the baby is born premature.

Then, the attorney submits the documents to the court. Because it’s a stipulated judgment, the judge will review the documents to ensure everything is accurate and sign off on them. (There are very few, if any, courts that require physical attendance.)

Once the agreement is signed by the judge, the documents will be sent to the hospital where the child will be delivered. This document is required to put the name(s) of the intended parent(s) on the birth certificate instead of the surrogate’s name.

Please note that in 33+ years we have never had a case in litigation, nor an issue with parentage.

We hope this article has given you a clearer picture of the legal side of surrogacy, helping you feel more confident and ready to embark on this incredible journey! 

Learn More About Becoming a Surrogate with Surrogate Parenting Services 

Surrogate Parenting Services is proud to celebrate over 30 years of helping to bring dreams to life! Founded in 1990, Surrogate Parenting Services (SPS) is a full-service surrogacy agency that offers both parties an exceptionally supportive environment throughout the surrogacy relationship. We’re passionate about creating ideal matches between surrogates and intended parents, so the journey is fulfilling for both sides and the future child is brought into this world in the best possible circumstances.   

Do you want to become a surrogate? Learn more about our Surrogacy Program online or by calling (949) 363-9525.