STATE SURROGACY LAW:

Hawaii Surrogacy Laws

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Overview

Hawaii has no statutes or case law that restrict gestational or traditional surrogacy. However, in Hawaii, the woman who delivers a child is presumed to be the legal mother and there is a legal presumption that her husband is the natural father unless otherwise established. Pre-birth orders of parentage are not available in Hawaii. Therefore, Intended Parent(s) should establish their parental rights through one or more post-birth legal proceedings.

Types of Surrogacy Available in Hawaii

Can a parentage order be obtained for the following?

Although traditional surrogacy isn’t prohibited in Hawaii, there isn’t much case history on the matter and most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

UNCLEAR

Altruistic surrogacy

YES

Parentage

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

– Both Intended Parents can be named on the birth certificate via a parentage order following birth. A court proceeding may be required to file the post-birth parentage order, depending on each individual case.

– The Intended Parent with the genetic connection can be named on the birth certificate via a parentage order following birth. The Intended Parent that is not genetically related to the child will need to complete a post-birth adoption. A court proceeding may be required to file the post-birth parentage order or post-birth adoption order, depending on each individual case.

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)

Hawaii has no statutes or case law that addresses the rights of donors of egg, sperm, or embryos or assisted reproduction.

Surrogacy Steps in Hawaii

Surrogacy Process in Hawaii

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Delivery and birth certificate finalization

Post-birth order

Hawaii requires post-birth orders to affirm parentage and name the Intended Parent(s) on the birth certificate

Birth Certificate Timeline

Birth certificate

6-12 weeks

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 Processes

Surrogacy Contracts

There are no statutes or case law which directly address the matter and it is unclear how a Hawaii court would interpret or enforce a surrogacy contract.

Independent Counsel

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

Requirements for Surrogates and Intended Parent(s)

Hawaii 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?

Do courts issue post-birth orders?

YES

Are hearings required to obtain a post-birth order?

YES

In Hawaii, hearings are required for post-birth orders. The process typically begins in the seventh or eighth month of pregnancy, with the actual filing taking place immediately after the birth certificate arrives. The judge ultimately decides who must attend, but generally, this includes the Intended Parents, the Surrogate, and her spouse (if any).

Bases of Venue

What are the bases of venue?

County (island) where the Intended Parents live; county where the Gestational Carrier lives; or the county where the child is born.

Do rulings vary by venue?

Can you file a motion to waive venue?

DEPENDS on the presiding judge.

Results don’t vary by venue for post-birth orders, but they may vary for second parent adoptions.

International Issues

Although there are some restrictions on donor gametes and how parentage is determined, Hawaii’s geographical location makes it a popular option for Intended Parent(s) coming from Australia and Asia. 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 Hawaii have any residency requirements for out-of-state or International Intended Parents?

Birth Certificates

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

YES, but only if the Gestational Carrier is not legally married. If the Gestational Carrier is legally married, the birth certificate can be reissued with the biological father’s name on it (and the name of his spouse or partner, if any) after a legal proceeding.

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

NO, the Gestational Carrier will be on the initial birth certificate.

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

YES, after a legal proceeding.

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

Caprice Itagaki, Esq.
Fertility Connections Hawaii
Davies Pacific Center
841 Bishop Street, Suite 2210
Honolulu, HI, 96813
(808) 585-1317
caprice@fertilityconnectionshawaii.com
fertilityconnectionshawaii.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