Surrogacy laws vary from state to state, and some states have laws that make surrogacy very difficult if not impossible. Some states have criminalized any paid forms of surrogacy. For example, Utah, Nevada, Arizona, Washington, New York, and Michigan have criminalized any agreement in which a surrogate is paid to carry a child. In some states, like Arizona, the law has come under question, but it is still unclear whether paid surrogacy is actually legal. Some states say that surrogacy contracts are unenforceable. This means that it is not a legally binding contract, and a surrogate mother has no rights to demand payment through the legal system. These states include Nebraska, North Dakota, Louisiana, and Indiana. Other states are harder to classify because they have certain laws regarding egg and sperm donation, fertility procedures, and/or adoption that can make surrogacy more difficult. Some of the states that are harder to classify include Kentucky, Oklahoma, and California. In Kentucky, for example, paid surrogacy is actually illegal. However, there are surrogacy programs within the state, so it appears that the government is not enforcing this law.
However, the majority of states in the United States have no laws regarding surrogacy or the contract between a couple and a surrogate. The best way to find out if surrogacy is legal in your state is to contact a local fertility clinic or a surrogacy agency. They will know their specific state laws regarding the procedures, and they will often have their own lawyers or be able to recommend lawyers who are well versed in the laws surrounding surrogacy and adoption. Some of the states that do not have any laws regarding surrogacy include Minnesota, Montana, Idaho, and Texas to name a few.
Legality also depends on the type of surrogacy that a couple is pursuing. Gestational surrogacy, for example, is usually more widely accepted than traditional surrogacy. With gestational surrogacy, the surrogate will carry the child to term, but the child is not related to her. She will receive an embryo through in-vitro fertilization or IVF, but that embryo will be genetically related to the couple receiving the child. While this is often easier for the surrogate, it is the more expensive method of having a child.
Traditional surrogacy is more common, but it also more difficult to attain in certain states. In this case, the surrogate is the biological mother, and the biological father is the husband of the intended mother. While the child is usually created through artificial insemination, some states have legal issues surrounding marriage laws and adoption laws that can make this kind of surrogacy difficult. In this type of arrangement, the surrogate will sign over all rights to her child, and the intended mother will adopt the child shortly after birth.
If surrogacy is illegal in your state, you have a few options that you could choose. For example, you could consider moving or making a surrogacy arrangement in a neighboring state. You could also consider adopting a child instead of going through the surrogacy process.