Surrogacy laws in the United States are set entirely by the states, not by the federal government, so the rules that govern a surrogacy agreement, the surrogate’s compensation, and the path to a birth certificate change dramatically depending on where the contract is signed and where the child is born. Most states now permit gestational surrogacy and will issue court orders naming the intended parents, a smaller group declares surrogacy contracts void and unenforceable, and one state criminalizes compensated arrangements. The direction of travel is toward broader acceptance: Michigan legalized surrogacy effective April 2025 after decades of criminal prohibition, and Massachusetts enacted its first surrogacy statute effective January 2025.
The Three Categories of State Surrogacy Law
States sort into roughly three groups. Understanding which group a state belongs to is the first question any intended parent or prospective surrogate should answer.
Surrogacy-Friendly States With Statutes
The largest group now consists of states that grant pre-birth parentage orders, allow both intended parents on the birth certificate, and enforce written surrogacy agreements. These states typically require the contract to be signed before the embryo transfer, mandate independent legal counsel for each party, and protect the surrogate’s medical decision-making rights. Several have adopted the 2017 Uniform Parentage Act or legislation modeled on it, which creates one of the most predictable legal environments in the country.
States Where the Contract Is Void
A smaller group of states treats surrogacy contracts as void and unenforceable by statute. Surrogacy still happens in these jurisdictions, and courts will issue parentage orders, but the contract itself carries no legal weight. If a dispute arises, neither side can point to the agreement as binding. Intended parents working in these states face a higher risk of contested parentage, and the non-biological parent often needs a separate adoption proceeding to secure legal status.
Louisiana: The Most Restrictive Scheme
Louisiana stands alone in effectively prohibiting compensated surrogacy through criminal penalties. The state restricts enforceable gestational surrogacy agreements to married heterosexual couples using their own genetic material, and contracts involving compensation are declared “absolutely null and unenforceable” as contrary to public policy. This is the most restrictive statutory scheme in the country.
States That Rely on Case Law
States without dedicated surrogacy statutes rely on court decisions to fill the gap. Judges in these jurisdictions generally look at the intent of the parties, the terms of the agreement, and the child’s best interests. The approach works when there’s a history of favorable rulings in a specific county or circuit, but it offers less certainty than a statute because a new judge could reach a different conclusion. Experienced surrogacy attorneys track local judicial tendencies as closely as they track the law itself.
Gestational Versus Traditional Surrogacy
The legal treatment of a surrogacy arrangement depends heavily on whether the surrogate has a genetic connection to the child. In gestational surrogacy, the embryo is created through IVF using eggs and sperm from the intended parents or donors, so the surrogate shares no DNA with the baby. That clean genetic separation makes establishing parentage far more straightforward, and virtually all modern surrogacy statutes are written specifically for gestational arrangements.
Traditional surrogacy uses the surrogate’s own egg, making her the child’s biological mother. Many states exclude traditional surrogacy from their surrogacy statutes entirely and treat it under adoption law instead. That classification gives the surrogate a legal right to change her mind and keep the child for a period after birth, because her parental rights must be formally terminated through a separate court proceeding. The legal risks are so much higher that most surrogacy agencies and attorneys steer clients away from traditional arrangements altogether.
When an arrangement also involves donated eggs or sperm from a third party, a separate donor agreement should be executed. The contract establishes that the donor has no parental rights or financial obligations toward the resulting child. Failing to execute one can create an unexpected claim to parentage, particularly in states where the absence of a written agreement leaves the door open for a donor to assert parental status.
What a Valid Surrogacy Agreement Requires
A surrogacy contract is not a handshake deal. States with surrogacy statutes impose specific procedural requirements, and failing to meet them can render the entire agreement unenforceable.
Independent Legal Counsel for Each Side
The most universal requirement is that the surrogate and the intended parents each have their own attorney throughout the process. This prevents one side’s lawyer from drafting terms that quietly favor their client at the other party’s expense. Under the Uniform Parentage Act model and in most surrogacy-friendly jurisdictions, the intended parents must pay for the surrogate’s attorney.
Eligibility and Screening
Under the UPA, both the surrogate and each intended parent must be at least 21 years old, complete a medical evaluation by a licensed physician, and undergo a mental health consultation with a licensed mental health professional before signing the agreement.1Uniform Law Commission. Uniform Parentage Act (2017) – Section 802 The surrogate must also have previously given birth to at least one child. Industry guidelines from the American Society for Reproductive Medicine recommend that surrogates be between 21 and 45 years old and have had at least one healthy pregnancy carried to term without complications.
Form, Timing, and Content
The agreement must be in writing, signed by all parties (including the surrogate’s spouse, if applicable), and notarized or witnessed. It must be fully executed before any medical procedure related to the surrogacy takes place, other than the initial evaluations.2Uniform Law Commission. Uniform Parentage Act (2017) – Section 803 An agreement signed after the embryo transfer has already occurred may not be enforceable in states following this model.
A properly drafted contract covers substantially more than payment terms. It should address:
- An unambiguous statement of parentage intent, making clear the intended parents will be the child’s legal parents from birth.
- How the intended parents will pay for the surrogate’s pregnancy-related medical costs and the newborn’s care.
- The base fee (if commercial) and specific categories of reimbursable expenses such as lost wages, travel, and maternity clothing.
- A clear acknowledgment of the surrogate’s right to make her own health care decisions during pregnancy.
- Agreements on sensitive scenarios like selective reduction, pregnancy complications, and termination decisions, reached before the journey begins.
The Surrogate’s Medical Autonomy
One of the most misunderstood areas of surrogacy law involves the surrogate’s right to make her own medical decisions. Regardless of what the contract says, the surrogate retains ultimate authority over her own body and health care during pregnancy. The UPA explicitly requires that the agreement permit the surrogate to make all health and welfare decisions regarding herself and the pregnancy. The American College of Obstetricians and Gynecologists takes the same position, advising physicians to treat the surrogate as the sole decision-maker and not to seek input from the intended parents on clinical choices.
Contracts often include lifestyle provisions covering topics like travel restrictions, dietary guidelines, and abstinence from alcohol and tobacco. These are generally treated as expectations rather than enforceable mandates. A court is unlikely to grant specific performance of a clause requiring a surrogate to eat a particular diet or avoid a certain activity, because doing so would amount to judicial control over another person’s body. If a surrogate violates a lifestyle clause, the remedy is typically financial, such as a reduction in compensation, not physical compliance.
Clauses that purport to give the intended parents the right to require a cesarean delivery or other specific medical procedure are generally unenforceable. Even if the surrogate signed the clause, physicians should not and legally cannot perform a procedure over her objection simply because a contract calls for it. No legitimate surrogacy contract penalizes a surrogate for withdrawing from a medical procedure to protect her own health.
Getting the Intended Parents on the Birth Certificate
Having the intended parents’ names on the birth certificate is not automatic anywhere. It requires a court order, and the process varies depending on where the child is born.
Pre-Birth Parentage Orders
In surrogacy-friendly states, the primary mechanism is a pre-birth order. The intended parents’ attorney files a petition during the second or third trimester, attaching the executed surrogacy agreement and medical records confirming the embryo transfer. If the court grants the order, the hospital and the state’s vital records office are directed to list the intended parents on the original birth certificate at the time of delivery. The surrogate never appears as a legal parent on any document. A growing majority of states now grant pre-birth orders for gestational surrogacy when the agreement complies with state law.
Post-Birth Orders
Where pre-birth orders are unavailable, the intended parents must obtain a post-birth parentage order after the child is born. The filing happens quickly, often within the first few days, but the surrogate may temporarily be listed as the legal mother while the court processes the petition. The waiting period before a judge signs the final order varies but is typically short when the agreement is properly documented.
When a Second-Parent Adoption Is Needed
In some states, particularly for the non-biological intended parent, a second-parent or stepparent adoption may be necessary to fully secure parental rights. This is most common when the jurisdiction only recognizes the genetic parent’s claim through the parentage order and requires the other parent to adopt. The adoption process adds time, cost, and an additional layer of court scrutiny that includes a home study, which typically runs $900 to $3,000. Intended parents who skip this step risk having their parental status questioned if they travel to or relocate to a less favorable jurisdiction.
Once a parentage order or adoption decree is final, the state’s vital records office issues an amended birth certificate. Processing times vary widely but can take several weeks to several months depending on the state.
LGBTQ+ Parents Face Extra Steps
Same-sex couples face additional legal complexity that heterosexual couples often do not. While the Supreme Court’s marriage equality ruling provides a baseline of recognition, family law varies enough at the state level that marriage alone does not guarantee parental rights for the non-biological parent in every jurisdiction.
The core issue is that in many states, a parentage order names only the genetic parent automatically. The non-biological same-sex parent must then establish legal parentage through a second-parent adoption or a separate court proceeding. Some states handle this smoothly, placing both parents on the birth certificate through the surrogacy parentage order. Others require the non-biological parent to go through the adoption process regardless of marital status.
The most restrictive jurisdictions limit enforceable surrogacy agreements to heterosexual married couples, effectively excluding same-sex couples from the statutory framework. In those states, same-sex intended parents must either pursue surrogacy in a friendlier jurisdiction or navigate an uncertain path through case law and adoption proceedings. A birth certificate issued in a surrogacy-friendly state that names both parents carries weight across state lines, even if the parents’ home state has weaker protections.
Experienced surrogacy attorneys strongly recommend that the non-biological parent in any same-sex couple obtain a second-parent adoption or a court order explicitly establishing parentage, even if the birth state places both names on the certificate. A birth certificate alone is not definitive proof of parental rights in every state, and a court judgment travels better across jurisdictions.
Why the Birth State Decides Everything
Because surrogacy law is entirely state-based, the location of the birth controls which state’s law governs the parentage proceedings. That creates a strategic decision intended parents must make early: where should the surrogate deliver? The birth state determines whether a pre-birth order is available, whether both parents can be named on the original birth certificate, and whether the contract itself is enforceable.
Intended parents who live in a state with unfavorable surrogacy law routinely work with surrogates in friendlier jurisdictions. This is entirely legal but requires planning. The agreement must comply with the law of the state where the surrogate resides and will deliver, not the state where the intended parents live. If the surrogate unexpectedly delivers in a different state, say because of premature labor during travel, the parentage proceedings may suddenly fall under a different legal framework than the one everyone planned for.
The UPA addresses jurisdiction by requiring that at least one party be a resident of the state, or, if no party is a resident, that at least one medical evaluation, procedure, or mental health consultation occur there.2Uniform Law Commission. Uniform Parentage Act (2017) – Section 803 States that have adopted this model typically will not process a parentage petition unless the jurisdictional link exists.
A parentage order issued in one state should be recognized in others under the Full Faith and Credit Clause of the U.S. Constitution, but enforcement across state lines is smoother when the order comes from a state with a well-established surrogacy framework. Intended parents who plan to raise the child in a state with weak surrogacy protections should discuss with their attorney whether a second-parent adoption or additional court filing in the home state is advisable for extra security.
Commercial Versus Altruistic Compensation
States also split on what the surrogate can be paid. In states that permit compensated (commercial) surrogacy, the surrogate receives a base fee for the physical demands, time, and risk of carrying a pregnancy, in addition to reimbursement for pregnancy-related expenses. First-time surrogates typically earn between $50,000 and $60,000, while experienced surrogates can earn $60,000 to $90,000 or more.
A smaller number of states restrict surrogacy to altruistic arrangements, where the surrogate receives only reimbursement for actual pregnancy-related expenses and no base compensation. Any contract that includes a base fee in these jurisdictions is void and unenforceable. Lost wage calculations deserve particular attention in any contract because they are a frequent source of disputes. The agreement should specify whether wages are calculated on a gross or net basis, define an hourly or daily rate, and set a maximum payout for the entire journey.
Why Current Legal Advice Matters
Surrogacy law in the United States has changed more in the past five years than in the previous two decades. States that once criminalized surrogacy have legalized and regulated it. States that operated through case law alone have enacted comprehensive statutes. The overall direction is toward broader acceptance and clearer legal frameworks, driven in part by the growing number of states adopting the 2017 Uniform Parentage Act or legislation modeled on it.
The pace of change means legal advice from even a few years ago may be outdated. Intended parents and surrogates should work with attorneys who specialize in reproductive law and actively track legislative developments in the relevant jurisdictions. The single most consequential decision in any surrogacy journey is choosing the right state for the agreement and the birth, and that choice depends on the law as it exists today.