fbpx
STATE SURROGACY LAW:

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.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

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 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

Select your agency and attorneys

Match with a gestational carrier

Complete medical and psychological evaluations

Complete legal contract

Begin IVF cycle with surrogate

Delivery

Post-birth order

Idaho requires a post-birth order to affirm parentage and complete the birth certificate with Intended Parent(s)’ names.

Birth Certificate Timeline

Birth certificate

7-10 business days after receiving post-birth order if expedited

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

Do courts issue pre-birth orders?

NO

Do courts issue post-birth orders?

YES

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

YES

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

What are the bases of venue?

Can be filed in any venue but all cases are transferred to one judge who resides in Ada County

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

NO

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

Does Idaho have any residency requirements for out-of-state or International Intended Parents?

NO

There are residency requirements for the purposes of adoption statutes.

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

YES

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

6-8 weeks after submitting birth certificate.

Passports can be expedited for an extra fee; delivery will take 2-5 business day delivery once a birth certificate has been received. 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

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

Subscribe to get our latest updates and news right in your inbox