STATE SURROGACY LAW:

New Mexico Surrogacy Laws

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Overview

Gestational surrogacy agreements are neither permitted nor prohibited based on N.M. Stat. Ann.§40-11A-801, which is part of the New Mexico Uniform Parentage Act.

Gestational surrogacy is somewhat 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.

Types of Surrogacy Available in New Mexico

Can a parentage order be obtained for the following?

Traditional surrogacy is not prohibited by statute or case law in New Mexico, but practice surrounding it is more restrictive. Pre-birth orders do not apply to traditional surrogacy cases; adoption processes are required instead. Payment also has to meet adoption statute guidelines, and a traditional surrogate’s parental rights must be terminated following adoption procedures. Moreover, child support guidelines may apply to traditional surrogates. Most attorneys and agencies strongly advise against the practice given the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

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.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, 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.

Rights of Egg or Sperm Donor(s)

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.

Surrogacy Steps in New Mexico

Surrogacy Process in New Mexico

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

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

Begin IVF cycle with surrogate

Pre-birth order

Proceedings begin after the first trimester

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

6-8 weeks, although it’s possible to pay to expedite the process.

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.

Court Processes

Surrogacy Contracts

Gestational surrogacy contracts in New Mexico are recognized and enforced by the state. Traditional surrogacy contracts aren’t considered binding.

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)

New Mexico 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?

YES

Do courts issue post-birth orders?

YES

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

VARIES

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.

Bases of Venue

What are the bases of venue?

County where the child is born; county where the Intended Parent(s) live; county where the Gestational Carrier lives. Additionally, the county where the child is physically present at the time the petition is filed can be used, though some judges object to this provision in the statute.

Do rulings vary by venue?

Can you file a motion to waive venue?

NO, but it’s possible to issue a challenge to one judge, as well as to control venue by having the Intended Parents stay in a county of their choice with the child.

Although the majority of rulings do not vary by venue, one judge will not sign a birth order until after the child is born.

International Issues

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.

Residency Requirements

Does New Mexico 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

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

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

YES

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 8 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

Harold O. Atencio
Peak Legal Group LLC
6312 Montano Rd NW, Suite A
Albuquerque, NM 87120
(505) 839-9111
hal@pklegalgrp.com
www.PkLegalGrp.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