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STATE SURROGACY LAW:

Arizona Surrogacy Laws

Overview

Surrogacy laws in Arizona are among the most complex in the United States, but as a matter of practice, surrogacy arrangements do take place in Arizona and parentage orders are granted by the courts. 

Arizona Revised Statute § 25-218 prohibits surrogacy agreements, declaring that a surrogate is the legal mother of a child born by her from a surrogacy contract. However, case law makes motherhood a rebuttable presumption, as rulings have found that “the surrogate statute as it exists violates the equal protection guarantees of the United States and Arizona Constitutions” since a husband’s fatherhood is a rebuttable presumption.

Moreover, since the 1994 case, Soos v. Superior Court, Intended Parents have been able to rebut the claim that the gestational carrier was the legal mother, Intended Parents were able to petition for pre-birth orders. Courts now grant such pre-birth orders, but surrogacy contracts may be unenforceable. However, interpretation of the statutes and case law may differ by attorney. It is essential to speak with an attorney with experience in assisted reproduction law in Arizona before moving forward with any surrogacy arrangement in this state.

Types of Surrogacy Available in Arizona

Can a parentage order be obtained for the following?

The prohibition on surrogacy contracts in Arizona applies equally to all types of surrogacy; they are all on the same legal footing, again depending on genetic relationships.

Although traditional surrogacy isn’t prohibited in Arizona, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy:

YES

Commercial surrogacy:

YES

Traditional surrogacy:

YES, but Arizona parentage law is based on genetics

Altruistic surrogacy:

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate by a court parentage order?

Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💛 💛 💛 💛 💚
No Genetic Connections

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💛 💛 💛 💛 💚
No Genetic Connections
Show Court Parentage Order Collapse

Surrogacy rulings in Arizona are unfavorable to Intended Parent(s) without a genetic connection to their child, and results may vary by judge. Even when the non-genetic parent is already named as a legal parent on the birth certificate via a parentage order, a  later stepparent adoption is always recommended, to ensure that both parents have equal rights in case of a later divorce. 

If both Intended Parent(s) have no genetic connection to their child, they must establish parentage via a post-birth adoption.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Father or Mother.

Rights of Egg or Sperm Donor(s)

No statutes or case law in Arizona address the rights of a sperm, egg, or embryo donor over the gametes or a resulting child.

Surrogacy Steps in Arizona

Surrogacy Process in Arizona

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and prepare surrogacy memorandum of understanding that will not be enforceable if all the parties are in Arizona and the transfer happens there

Begin IVF cycle with surrogate

Pre-birth order

Arizona may allow pre-or post-birth orders to be filed granted, although this varies by court/judge. Proceedings should begin after first trimester.

Delivery and birth certificate finalization (if pre-birth order is issued)

Post-birth order

Some Arizona judges may require a post-birth order to establish parentage and finalize birth certificate, but most often such orders are granted within the time frame to prepare the birth certificate with the Intended Parents’ names on it.

Birth Certificate Timeline

Birth certificate

5-10 business days

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Issues

Surrogacy Contracts

Surrogacy contracts are considered void by the state of Arizona. Some attorneys may draft a memorandum of understanding for surrogacy situations in lieu of contracts.

Independent Counsel

Independent counsel is recommended, but not required, to participate in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Arizona has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders:

VARIES

Do courts issue post-birth orders:

VARIES

Are hearings required to obtain either pre- or post-birth orders:

VARIES

It can be possible to get pre-birth orders, but some Arizona judges have a preference for establishing parentage via post-birth adoptions.

Bases of Venue

What are the bases of venue:

County where the child is born; county where the Intended Parents live; county where the Gestational Carrier lives.

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

YES

International Issues

International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country. 

Residency Requirements

Does Arizona have any residency requirements for out-of-state or International Intended Parents?

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can they obtain a birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES, but only the biological father is named. The non-biological father can be added after a second-parent adoption in the parents’ home country. Arizona can then amend the birth certificate with both names.

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 8 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Dan Ziskin
301 East Bethany Home Road, St. B100
Phoenix, AX 85012
602-234-2280
dan@adoptz.com
Daniel-i-ziskin-pc.business.site

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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