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The Hostile States: Ensuring that your state laws do not prohibit your gestational carrier arrangement

The New York Times recently ran an article regarding the push to legalize gestational carriers in New York. Surprisingly, New York is one of the harshest states in terms of gestational carrier legislation, and actually forbids paid gestational carrier arrangements (women are permitted to “volunteer” as gestational carriers and to carry children for others in unpaid “compassionate” capacities).  Many citizens of New York, particularly its sizeable population of gay people, are pushing to have compensated gestational carrier legalized in the state.

http://www.nytimes.com/2014/02/20/fashion/In-New-York-Some-Couples-Push-for-Legalization-of-Compensated-Surrogacy.html?_r=0

This article brings to light the reality that gestational carrier laws vary widely from state to state, and that it is extremely important to familiarize oneself with the laws of the home state of the intended parents as well as the home state of the gestational carrier. If the intended parents and the gestational carrier live in different states, the gestational carrier contract should name which state’s laws the will control the contract, and it is imperative that a hostile state not be selected to govern the contracts’ enforceability. Further, states vary in terms of the allowable procedures that must be completed to have the intended parents’ names placed on the birth certificate, and it is important to understand those procedures (or the lack thereof) prior to choosing a gestational carrier who may give birth in a difficult state.

Below is a list of the most hostile states for gestational carrier arrangements. Many agencies will not even accept gestational carrier candidates who reside in these states. Sometimes it is still possible to work with a carrier who resides in one of the states below, but hostile state laws could add considerable financial and legal complications, and it is important for all parties to understand the limitations that may be imposed prior to drafting the contract.

States that prohibit gestational carriers or paid gestational carriers:

  • Arizona
  • District of Columbia
  • Indiana
  • Louisiana (*forbids only traditional gestational carriers)
  • Michigan
  • Nebraska
  • New York
  • North Dakota
  • Washington

States where intended parents should be cautious about pursuing gestational carriers

  • Delaware
  • Florida
  • Kansas
  • Missouri
  • Nevada (*may be problematic for LGBT intended parents)
  • New Hampshire (*may be problematic for LGBT intended parents)
  • New Jersey
  • Tennessee (*may be problematic for LGBT intended parents)
  • Virginia (*may be problematic for LGBT intended parents)

(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)