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.