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Surrogacy Law Map: New State Laws

Whether you are new to surrogacy or in the middle of a surrogacy journey, it can be difficult to understand the many moving and ever-changing parts of a surrogacy journey, especially when it comes to the legal process. This is why our team has created our Surrogacy Law Map, where we outline the legal details for each state, breaking down the laws into terms that can be easily understood, even by those that are new to surrogacy. We could not do this work alone, so we work with an amazing team of lawyers that are familiar with the legal steps in each of their states.

We’ve been working on 2023 edits for each of the states and we can’t wait to share some of the state laws that have become more friendly – opening the way for more surrogacy cases and more dreams becoming a reality.

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Idaho - New State Laws

A newly established law (July 2023) allows for pre-birth validation of gestational carrier agreements. After the agreement is validated and birth occurs, a notice of birth will be filed, and the court will issue an order of parentage declaring the Intended Parents as the legal parent(s) of the child. Vital Records will then release a new birth certificate with the Intended Parent’s name(s).

This law eliminates the need for any non-biological parent to complete any form of adoption or parentage in their home country or state.

All rules for marriage have been eliminated by this new law, so anyone can be recognized on the pre-birth order as the parent(s).

Oklahoma - New State Laws

Due to recent law changes, pre-birth orders need to be obtained BEFORE the embryo transfer, which is a new detail with the process in Oklahoma. The good news is that this new process streamlines the legal process in Oklahoma so the process after the embryo transfer is less complicated.

Missouri - New State Laws

Changes to the way the laws in Missouri affect parentage have made the state more friendly for Intended Parents that do not have a genetic connection to the child. Through the Uniform Parentage Act, an act set forth to simply the process of parentage, Intended Parents without a genetic connection can apply for parentage and obtain a pre-birth order.

Kansas - New State Laws

The process for obtaining pre-birth and post-birth orders has been made clearer and more concise. The statutes now better outline the steps for the surrogacy process.

The biggest change, which makes Kansas more surrogacy friendly, is that genetic connections are no longer needed to establish parentage – meaning that Intended Parents without a genetic connection can obtain a pre-birth order, naming them on the birth certificate and no longer need to complete a second-parent adoption.

In order to understand these law changes and how they affect the surrogacy process, we want to break down some important aspects of a surrogacy journey where the law is concerned. You will see many of these words used often on our Surrogacy Law Map and in these recent law changes.

Gestational Surrogacy, Traditional Surrogacy & Altruistic Surrogacy – What’s the Difference?

In a surrogacy journey, there are differences with conception, the agreement that is established between the Intended Parent(s) and the Gestational Carrier, and how the legal process is carried out with the case.

Gestational surrogacy is the process where one person carries a fetus through pregnancy and gives birth to the child. The biggest distinction between a Gestational Surrogacy case and a Traditional Surrogacy case is that in a gestational surrogacy case, the Surrogate does not provide the egg used in conception. Whereas in a traditional surrogacy case, the Surrogate also provides eggs for conception and carries the child through pregnancy, so the surrogate is genetically related to the child.

Most lawyers and agencies will advise against traditional surrogacy due to the potential complications while establishing parentage. While it is possible and traditional surrogacy is still utilized today, it’s not legal in every state, so we advise caution before proceeding with this route. Even in states where traditional surrogacy is legal, the process can be complicated, and some legal counsel will advise against it due to the extra necessary steps.

Altruistic surrogacy is another way to approach a surrogacy journey. Although altruistic surrogacy is not as popular in the US compared to other countries, it is still a route available to Intended Parents. Altruistic surrogacy refers to a surrogacy agreement where the surrogate doesn’t receive monetary compensation for the surrogacy journey. While the surrogate will receive reimbursement and compensation in the form of services (childcare for biological children, therapy, time-off from work due to the surrogacy pregnancy, insurance, etc.), no monetary compensation will be provided during the journey. Agreements involving altruistic surrogacy are normally seen in cases where the Intended Parent(s) and the surrogate are of close relation, but in some countries, in Canada for example, all surrogacy cases are altruistic by law.

Parentage

In a surrogacy case, parentage refers to the legal parent(s) of the child born through surrogacy. In a surrogacy case, you will hear this word used often, from the hospital to the surrogacy agency (if there is one on your journey). The process for establishing parentage will vary with each state, depending on where the Surrogate lives, where the Surrogate will give birth, and the state/country where the Intended Parents live.

More on how parentage is established below! Also, you can read about the legal steps necessary for establishing parentage and much more on our Surrogacy Law Map.

Pre-Birth Order

A pre-birth order is an agreement that the Surrogate and the Intended Parent(s) sign prior to the birth, stating that the Intended Parent(s) is/are the legal parent(s) of the child. This formalizes the intent of all the parties involved and also provides the hospital where the Surrogate gives birth a directive from the Court stating that the Surrogate is in fact not the legal parent of the child. Although a pre-birth order is not necessary for a surrogacy case to run smoothly, in some states the pre-birth order simplifies the legal process.

Post-Birth Order

As with the pre-birth order, a post-birth order is used to establish parentage for a child born through surrogacy, with the main difference being that the post-birth order is obtained after the birth of the child.

Depending on the legal process in each state, the use of a pre-birth or post-birth order can vary. In surrogacy friendly states, the process of establishing parentage is clear and precise, whether using a pre-birth or post-birth order. The process can vary, but a pre-birth order is not necessarily better than a post-birth order, or the other way around. Both orders and the process involved can be used to establish parentage in a way where Intended Parents and Surrogates can rest assured that everyone is legally protected.

Second-Parent Adoption

 In some states, it might be necessary for an Intended Parent that is not genetically related to the child to complete a second-parent adoption. This process can look differently depending on the state with jurisdiction (the court that will oversee the legality of the surrogacy journey), but for the most part, a second-parent adoption would take place after the birth of the child. This process can vary greatly from state-to-state, so for more information, check out our Surrogacy Law Map for the state that would apply to your case.

Conclusion

It’s very exciting to see states open up their laws to streamline the legal process for surrogacy cases, creating more opportunity for creating life and making dreams come true for Intended Parents looking to grow their families. For more information on each state and the laws protecting surrogacy, please check out our Surrogacy Law Map. If you have further questions or would like to pursue surrogacy in your state, contact information is provided for the lawyers that we work with at Love & Kindness on the state page that applies to your situation. We would also love to hear from you regarding how Love & kindness can assist you on your surrogacy journey – feel free to contact us.

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