Idaho Surrogacy Laws
Overview
Idaho has no statutes or case law that address surrogacy. The closest parallel in Idaho is their statute on artificial insemination, which recognizes the marital partner of a couple using artificial insemination as the legal parent of their child as long as the statutory requirements are followed.
In 2016, a case was brought before the Idaho Supreme Court seeking to establish parentage for a heterosexual married couple using donor eggs and the husband’s sperm with a gestational surrogate. The couple argued, consistent with the artificial insemination statute, that the wife could be deemed the legal parent of their child even though in vitro fertilization and not artificial insemination had been used. The court declined to rule in favor of the couple and instead indicated because there was no statute covering in vitro fertilization that the non-genetic parent would have to complete a second parent adoption to be recognized as the legal parent of the child.
Types of Surrogacy Available in Idaho
Can a parentage order be obtained for the following?
Although traditional surrogacy is not prohibited in Idaho, most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.
Parentage
Who can be declared as the parent(s) of a child from a surrogate via 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.
Only genetic Intended Parents can be placed on the birth certificate in the first instance. Birth certificate will be amended to include the non-genetic Intended Parent following a second parent adoption in the couple’s home country or state. However, the court does grant legal guardianship and custody to the non-genetic parent – they just aren’t listed as a parent on the birth certificate. Because there is no marriage requirement, this applies to unmarried heterosexual couple with one genetic connection.
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)
There are no statutes relating to sperm or egg donors other than the artificial insemination statute but the court enforces sperm and egg donor agreements.
Surrogacy Steps in Idaho
Surrogacy Process in Idaho
Birth Certificate Timeline
Idaho 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 Association of Adoption and Assisted Reproduction Attorneys.
Court Processes
Surrogacy Contracts
Although no statutes directly address the matter, surrogacy contracts in Idaho are recognized and enforced by the state.
Independent Counsel
Independent counsel is recommended, but not required, to participate in a surrogacy agreement.
Requirements for Surrogates and Intended Parent(s)
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.
Birth Orders
Although Idaho will issue post-birth orders to genetic Intended Parent(s), it is essential to consult with an experienced attorney that specializes in surrogacy to achieve favorable outcomes with your case.
Bases of Venue
All surrogacy cases are heard by District Judge Darla Wiliamason in Ada County. This has led to a great deal of consistency in rulings, but rulings have not always been favorable to Intended Parents.
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
There are residency requirements for the purposes of adoption statutes.
Birth Certificates
International Intended Parents who need to complete a stepparent or second-parent adoption to amend the birth certificate will need to complete this step in another state.
Passport Timeline
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
MONICA COCKERILLE
Idaho Fertility Law/Cockerille Law Office, PLLC
100 W Main St. Suite 204
Boise, ID 83702
208/343-7676 (o)
208/850-3075 (c)
monicacockerille@me.com
www.idahofertilitylaw.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
