Sometimes the terms gestational carrier and surrogacy are used interchangeably, most notably in the law and among lay people. However, there is a huge distinction between how the terms are used among reproductive health professionals: A gestational carrier is a woman who agrees to carry a child for another person using artificial insemination. The child she carries is not her biological child and it may or may not be the biological child of the person or persons for whom she carries the child. A surrogate is a woman who agrees to carry a child for another person. A surrogate uses her own eggs that have been fertilized by a donor sperm or the intended father’s sperm through artificial insemination. The resulting child of a surrogate is her biological child.
Generally, a couple will use a surrogate when the intended mother does not have a functioning uterus or the lining of her endometrial is not thick enough to support a pregnancy or there exists a medical condition, such as kidney failure, severe diabetes, pulmonary hypertension with a fifty percent mortality rate during pregnancy, that prevents her from carrying a pregnancy.
The procedure of a gestational carrier cycle is virtually identical to an egg donor IVF procedure that requires the transfer of embryos. That is, a doctor must prepare the uterus and time it with the intended mother’s cycle or egg donor’s cycle if the intended mother will not be using her own eggs.
The biggest legal issue is whether a gestational carrier or a surrogate may try to claim that she is the legal mother of the child she is carrying or the resulting child from this arrangement. A court is more inclined to abide by the parties agreement to a gestational carrier contract because the gestational carrier is not the biological mother. That said, not all states enforce these types of contracts and some states even ban these arrangements. A simplification of the law is provided below:
It is a criminal offence to make a payment that would persuade or facilitate adoption. Although a gestational carrier is exempt from this statute, intended parents should ensure that payments to a gestational carrier do not resemble payments to encourage adoption.
Alaska is silent on this issue.
Arizona prohibits gestational carrier contracts. Arizona treats gestational carriers as legal mothers. However, the gestational carrier could allow the intended parents to adopt the child.
Under Arkansas law, there is a presumption that the intended parents are the parents of a child born to a gestational carrier.
California recognizes Gestational Carrier Contracts.
Colorado is silent on this issue.
Connecticut is silent on this issue. However, under its birth record statute, perhaps a gestational carrier contract may be recognized.
Delaware is silent on this issue.
District of Columbia
The District of Columbia is silent with respect to gestational carrier contracts; however, it will not enforce traditional surrogacy contracts. Furthermore, it is a crime to aid in the creation of a traditional surrogacy contract.
In Florida, gestational carrier agreements if they are unpaid, with the exception of receiving money for reasonable expenses relating to health, living, and legal, and the agreement follows the requirements of the statute. The statutory requirements are very stringent and do not allow for a circumstance when both egg and sperm donors are used because, under the statute, at least one parent most be biologically related to the child.
Georgia is silent on this issue.
Hawaii is silent on this issue.
Idaho is silent on this issue
Illinois recognizes gestational carrier contracts and it requires certain conditions to be met. Among other things, it requires that the gestational carrier to have given birth prior to acting as a gestational carrier, to be 21 years of age or older, to have undergone a medical evaluation, and to have obtained legal consultation, and payment to the gestational carrier must be placed in an escrow account. Intended parents are allowed to use a pre-birth order to establish parentage.
Indiana does not recognize gestational carrier contracts and it views traditional surrogacy agreements as against public policy.
Iowa is silent on gestational carrier contracts. However, Iowa makes it unlawful to sell babies and traditional surrogacy contracts are exempted from that statute.
Kansas is silent on this issue.
In Louisiana, Gestational carrier agreements are enforceable so long as there is no compensation given to the gestational carrier.
Maine is silent on this issue.
Maryland is silent on this issue.
There is not a statute in Massachusetts that addresses gestational carrier contracts or agreements; however, many gestational carrier and traditional surrogacy cases have been decided. From the cases, it seems that traditional surrogacy contracts will not be enforced while gestational carrier contracts will be enforced. The court may also have the power to issue pre-birth orders with respect to gestational carrier agreements.
Michigan prohibits surrogacy and gestational carrier contracts and holds anyone who engages in such an agreement to have committed a felony.
Minnesota is silent on this issue.
Mississippi is silent on this issue.
Missouri is silent on this issue.
Montana is silent on this issue.
Nebraska does not enforce surrogacy contracts. However, a biological father who is a party to such an agreement may still be regarded as the legal father. There is some debate whether an unpaid surrogacy agreement is enforceable under Nebraska law.
Nevada only enforces unpaid surrogacy agreements when the intended parents are married to each other. The surrogate may still receive money for reasonable and necessary expenses.
New Hampshire enforces gestational carrier agreements so long as the statutory requirements are met.
New Jersey does not have a statute that speaks to this issue; however, case law suggests that its adoption laws govern surrogacy agreements. Presumably, surrogacy agreements are allowed as long as no payment has been made to the surrogate and the surrogate is not required to give up the baby she has carried.
New Mexico is silent on this issue.
New York does not recognize gestational carrier contracts. Nevertheless, cases law suggests that the rights of intended parents may still be protected.
North Carolina is silent on this issue.
North Dakota does not enforce surrogacy contracts.
Ohio recognizes gestational carrier contracts. Absent a contract it is argued that Ohio may side with the biological parents of the child if a dispute arises from a surrogacy arrangement.
Oklahoma is silent on this issue.
Oregon may enforce traditional surrogacy contracts as long as the payment would not induce adoption.
Pennsylvania is silent on this issue, except for one case.
Rhode Island is silent on this issue.
South Carolina is silent on this issue.
South Dakota is silent on this issue.
Tennessee is silent on this issue.
Texas is silent on this issue.
Utah enforces gestational carrier contracts under its Uniform Parentage Act.
Vermont is silent on this issue.
Virginia enforces gestational carrier agreements if its statutory requirements are met.
Washington does not enforce compensated surrogacy agreements.
West Virginia is silent on this issue other than exempting surrogacy contracts from its prohibitory baby selling statute.
Wisconsin has a method for intended parents who have used the services of a gestational carrier to determine parentage.
Wyoming is silent on this issue.
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