Arizona Surrogacy Laws
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, recently, in reliance on the 1994 case, Soos v. Superior Court, allowing both Intended Parents to present evidence that the gestational carrier is not a parent, Intended Parents have been able to present genetic evidence to rebut the claim that the gestational carrier was the legal mother. Intended Parents have been able to petition for pre-birth orders in most circumstances. Most courts now grant such pre-birth orders, but surrogacy contracts may be unenforceable because the law prohibiting contracts has not been explicitly overturned. However, interpretation of the statutes and case law may differ by attorney and by judge. It is essential to speak with an attorney with experience in assisted reproduction law in Arizona before moving forward with any surrogacy agreement in this state. It is possible, when Intended Parents and the gestational carrier are in agreement, to present the case to a chosen judge in Arizona that will be more likely to grant pre-birth orders.
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.
Who can be declared as the parent(s) of a child from a surrogate by a court parentage order?
– 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.
* It is very likely to have both parents listed on the birth certificate for a lesbian same-sex couple. For a same-sex gay couple, however, the non-genetic parent will need to do a post-birth adoption to also be listed on the birth certificate.
* No Genetic Connection – If both Intended Parents have no genetic connection to their child, they must establish parentage via a post-birth adoption. Surrogacy rulings in Arizona are unfavorable to Intended Parents without 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, a move to a hostile state, or death of the genetic parent and challenge by a relative.
How are Intended Parent(s) Listed on the Birth Certificate?
Intended Parent(s) may be listed as Father-Mother, Parent-Parent, Mother-Mother, or Father or Mother.
Mother-Mother – In reliance on the 1994 case, Soos v. Superior Court, case law makes motherhood a rebuttable presumption. When applied to cases with lesbian couples, it is likely to have both Intended Parents as Mother-Mother on the birth certificate, through a pre-birth order, even with just one genetic connection.
Father-Father – In some cases, it is possible for both Intended Parents, through obtaining a pre-birth order, to be listed on the birth certificate even when there is only one genetic connection. If this request is not granted by the judge presiding over the case, then the genetic father will be listed on the birth certificate and a post-birth order or post-birth adoption will be required for the Intended Parent with no genetic connection.
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
Birth Certificate Timeline
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.
The law is unclear in Arizona and it is best to assume that 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 or Intended Parents or the Gestational Carrier may have a contract prepared in a surrogacy friendly state if the facts of their situation allow it.
Independent counsel is 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.
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
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.
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.
Claudia D. Work, Esq.
10450 N. 74th Street, St. 110
Scottsdale, AZ 85258
301 East Bethany Home Road, St. B100
Phoenix, AX 85012
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 March 2023