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STATE SURROGACY LAW:

North Dakota Surrogacy Laws

Overview

North Dakota allows gestational surrogacy thanks to North Dakota Century Code, Chapter 14-28, which declares that a child born by a gestational carrier is the child of the Intended Parent(s). The state refers to what is commonly known as “gestational surrogacy” as a “gestational carrier agreement.” The law also defines a “gestational carrier arrangement” as one in which the wife’s eggs are fertilized by the husband’s sperm, which may restrict same-sex couples and, depending on interpretation, the use of donor gametes.

Traditional surrogacy contracts are prohibited by law. According to N.D. Cent. Code § 14-18-05, “Any agreement in which a woman agrees to become a surrogate or to relinquish that woman’s rights and duties as a parent of a child conceived through assisted conception is void.”

Types of Surrogacy Available in North Dakota

Can a parentage order be obtained for the following?

Although traditional surrogacy isn’t prohibited in North Dakota, most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved. Moreover, traditional surrogacy contracts in North Dakota are void and unenforceable. 

Gestational carrier

YES

Commercial surrogacy

YES

Traditional surrogacy

NO

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via 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 VARIES VARIES VARIES VARIES VARIES
Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💚 💚 💚 💚 💚
No Genetic Connections VARIES VARIES VARIES VARIES VARIES
Show Court Parentage Order Collapse

💚 – 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.

If there isn’t a genetic link to a child, it’s more difficult to establish parentage via a court parentage order in North Dakota. If you are planning on using donor gametes, we recommend discussing your case with your attorney to discuss your best options.

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)

According to N.D. Cent. Code §14-20-60, donors of sperm or egg for assisted reproduction procedures have no rights over the donated gametes or a resulting child. 

Surrogacy Steps in North Dakota

Surrogacy Process in North Dakota

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and complete legal contract

Begin IVF cycle with the gestational carrier

Pre-birth order

North Dakota allows pre-birth orders (“declaratory judgments”) to be filed. Proceedings begin after the first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

Intended Parent(s) may purchase copies of their child’s birth certificate in Bismarck within a day of it being electronically filed. Expedited ordering is available for births elsewhere in North Dakota.

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

Court Processes

Surrogacy Contracts

Gestational carrier contracts are permitted by North Dakota statutes. Traditional surrogacy contracts, on the other hand, are void and unenforceable.

Independent Counsel

Independent counsel is recommended, but not required, for all parties involved in a gestational carrier agreement.

Requirements for Surrogates and Intended Parent(s)

North Dakota has no statutory requirements that must be met for gestational carriers and Intended Parent(s) to participate in a gestational carrier 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?

YES

Do courts issue post-birth orders?

YES

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

NO

Bases of Venue

What are the bases of venue?

County where child is born; county where .Intended Parent(s) live; county where .Gestational Carrier lives.

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

UNCERTAIN

International Issues

International Intended Parent(s) may find using a gestational carrier in North Dakota a relatively straightforward process. 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 North Dakota 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 an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

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

YES

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 1-2 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

William Harrie
Nilles Lawyers 
201 5th St N
Fargo, ND 
(701) 237-5544
wharrie@nilleslaw.com
www.nilleslaw.com

Michael Gjesdahl
Gjesdahl Law
1375 21st Avenue 
North Fargo, ND 58102 
(701) 237-3009
mike@gjesdahllaw.com
gjesdahllaw.com

Lynn Slaathaug Moen
Brudvik Law Office, P.C.
231 9th Ave SE Mayville, ND 58257
(701) 788-3251
lynn@brudviklaw.com
www.brudviklaw.com

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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