The New Mexico statute states that gestational surrogacy agreements are neither permitted nor prohibited based on NMSA 1978, §40-11A-801, which is part of the New Mexico Uniform Parentage Act. However, as a practical matter, gestational surrogacy agreements are routinely used and upheld. The Court will grant pre-birth orders when the gestational surrogacy agreement was executed in advance of the Gestational Carrier becoming pregnant through IVF.
Gestational surrogacy is addressed in New Mexico through N.M.S.A. § 40-11A-704. This statute states that the Intended Parent(s) of a child conceived through assisted reproduction is recognized in law as the legal parents of that child as long as the Intended Parents, donors, and gestational carrier consent on record prior to transferring eggs, sperm, or embryos.
Can a parentage order be obtained for the following?
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.
All of the parties in the chart below can obtain a parentage order declaring the Intended Parent or Parents as the legal parent of the child born as a result of Assisted Reproduction.
Intended Parent(s) may be listed as Father-Mother, Parent1-Parent2, or Mother or Father.
If the Intended Parent(s) need to have the gestational carrier on the birth certificate for administrative purposes, they can choose to get a post-birth order instead of a pre-birth order.
According to NM Stat.§ 40-11A-702, donors of sperm or egg for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child.
Not all counties in New Mexico allow for the same parentage order process; some require parties to submit their petition and relevant affidavits in advance of a child’s birth, then finalize the parentage order when the child is born. However, many others grant pre-birth orders without additional steps or requirements.
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.
Gestational surrogacy contracts in New Mexico are recognized and enforced by the state. Traditional surrogacy contracts aren’t considered binding.
Independent counsel is strongly recommended, but not required, for all parties involved in a surrogacy agreement. However, attorney ethics require that all parties to a Gestational Carrier Contract be represented by competent counsel.
A hearing is typically not required for a parentage order, as each judge has the authority to sign an order without a hearing. However, the decision to have a hearing is at the discretion of the judge. Likewise, if a hearing is required, the judge determines whether the Intended Parent(s) must appear or whether their attorney can appear on their behalf.
Pre-birth orders do not apply to traditional surrogacy cases; adoption processes are required instead.
Although the majority of rulings do not vary by venue, there are cases where some judges will not sign the birth order until after the baby is born.
Because of the lack of legal restrictions and surrogacy-friendly courts, international Intended Parent(s) may find doing surrogacy in New Mexico a relatively straightforward process. 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 the facts of 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.
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 February 2024