States Where Paid Surrogacy is Still Illegal—And Why

United States surrogacy laws vary from state to state. Some make being or contracting with a surrogate easy. Others have set up numerous legal hurdles, and still, others completely prohibit paid surrogacy.

New York is the most recent state to legalize paid surrogacy. As of February 15, 2021, intended parents in New York can enter into an enforceable legal contract with a gestational surrogate to carry their child for an agreed-upon amount of compensation. New York’s Child-Parent Security Act includes stringent protections for gestational surrogates, requiring the intended parents to pay for insurance, legal representation, and more. Nevertheless, the new law is a big step forward for intended parents in New York.

With this change in New York law, Louisiana, Michigan, and Nebraska are the only three states that still ban paid surrogacy.

Michigan’s Surrogate Parenting Act

In Michigan, paid surrogacy has been illegal since 1988. The Surrogate Parenting Act states that gestational surrogates can only receive compensation for expenses directly related to the pregnancy. Paying a gestational surrogate any more than this is a felony, and all mentally fit parties involved in such an arrangement may be fined and/or imprisoned.

In Michigan’s Surrogate Parenting Act, no exact reason is stated for the prohibition of paid surrogacy. However, the law emphasizes that it is illegal for underage girls and intellectually or developmentally disabled women to become gestational surrogates. This shows great concern for the possibility that surrogacy contracts will exploit or abuse vulnerable populations.

Louisiana’s House Bill 1102

In Louisiana, the situation is more complicated. Paid surrogacy is illegal across the board. Unpaid surrogacy is only available for legally married couples who intend to use their own genetic material to create the embryo. Gestational surrogates may only be compensated for certain expenses related to the pregnancy and birth, and the contract between a gestational surrogate and the intended parents must meet the law’s strict requirements.

Louisiana House Bill 1102 cites “the best interest of the children” born via surrogacy as the primary motivator for the law.

Nebraska Revised Statute 25-21,200

Nebraska made its decision on surrogacy law in 1988. The legislation flatly prohibits enforcement of paid surrogacy contracts. Nebraska Revised Statutes § 25-21,200 states: (1) A surrogate parenthood contract entered into shall devoid and unenforceable. The biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child. (2) For purposes of this section, unless the context otherwise requires, a surrogate parenthood contract shall mean a contract by which a woman is to be compensated for bearing a child of a man who is not her husband.

Only the biological father can obtain a post-birth order, with the gestational carrier initially being named on the birth certificate. The intended parents then have to obtain a step-parent adoption to get the intended mother listed. For same-sex couples (with at least one parent genetically related to the child), only one of the intended parents can legally adopt the child.

In Nebraska, although compensated surrogacy contracts are unenforceable, uncompensated surrogacy is permitted.

Why are these laws so severe?

The ‘Baby M’ case prompted many states, including Michigan, to ban the practice of bearing children for money, which some described as baby brokering for profit. In the ‘Baby M’ case, surrogate mother Mary Beth Whitehead was contracted to carry William Stern’s child. But after she gave birth, Ms. Whitehead refused to turn the child over to Stern and his wife and sued for custody. Stern later won custody of the child, but the New Jersey Supreme Court ruled surrogacy illegal and awarded Ms. Whitehead visitation rights.

Family Source Consultants assists Intended Parents across the world

With offices located in Illinois and Florida, Family Source Consultants is able to provide assistance to intended parents in every state, including Michigan, Louisiana, and Nebraska. As an international surrogacy agency, we also specialize in matching and facilitating gestational surrogacy agreements for intended parents in Europe, Asia, Australia, and South America. And we are delighted and proud to work with intended parents of all kinds: traditional, gay or lesbian couples and individuals of all races, religious and ethnic backgrounds.

A clear motivation to help others is one of the most important criteria for determining the eligibility of any woman who is applying to be a surrogate. The incredible women who become gestational surrogates with Family Source are thoroughly screened and vetted. They understand their responsibilities and are dedicated to helping intended parents build their families.

Our staff members include former gestational surrogates, egg donors, and parents through surrogacy and egg donation; combined, we represent a unique group of individuals who completely understand all that encompasses the significance of creating a family through surrogacy.

Family Source Consultants is looking forward to being with you every step of the way, helping you navigate your surrogacy journey and bringing your dreams to life!