How Surrogacy Laws Vary Across U.S. States and Global Jurisdictions

One Country, Fifty Different Answers to the Same Question

In California, a surrogacy contract is enforceable before birth, and intended parents can be listed on the birth certificate from the delivery room. Drive 400 miles east to Michigan, and compensated surrogacy is a felony punishable by up to five years in prison and a $50,000 fine. Cross an ocean to the United Kingdom, and surrogacy agreements are legal but entirely unenforceable—the surrogate can keep the child regardless of what the contract says. No area of family law produces more jurisdictional chaos than surrogacy, and prospective parents navigate it with hundreds of thousands of dollars at stake.

Gestational vs. Traditional Surrogacy

The legal and biological distinctions between the two types of surrogacy have profound consequences for parentage, enforceability, and risk.

Gestational surrogacy dominates modern practice precisely because the genetic separation simplifies parentage determinations. When the surrogate has no biological connection to the child, courts are far more willing to enforce the intended parents' rights.

The Baby M Case: The Landmark That Defined the Debate

In 1985, Mary Beth Whitehead agreed to serve as a traditional surrogate for William and Elizabeth Stern for $10,000. After giving birth to a girl in 1986, Whitehead refused to surrender the child. The New Jersey Supreme Court's 1988 ruling in In re Baby M established several principles that still influence surrogacy law:

• The court declared the surrogacy contract void as against public policy
• Compensated surrogacy was equated with baby selling
• Whitehead was recognized as the legal mother because she was the biological mother
• William Stern received custody based on the child's best interests, not the contract
• Whitehead received visitation rights as a legal parent

Baby M did not ban surrogacy nationally, but it scared legislators. Many states passed restrictive laws in response, and some never revisited the issue even as gestational surrogacy rendered the biological-mother concern largely moot.

U.S. State-by-State Legal Landscape

No federal law governs surrogacy. Each state sets its own rules through statutes, case law, or both—and some states have no clear law at all.

California remains the gold standard. The California Family Code allows intended parents to obtain a pre-birth parentage judgment, meaning the intended parents' names go on the birth certificate at delivery. Same-sex couples and single intended parents have the same rights as heterosexual couples. This legal certainty has made California the nation's surrogacy hub despite its high cost of living.

The Parentage Order Process

The parentage order is the legal mechanism that transfers parental rights from the surrogate to the intended parents. The process varies by state but generally follows a predictable pattern:

• Intended parents file a petition in the county where the surrogate will deliver
• The petition includes the surrogacy agreement, medical records confirming gestational surrogacy, and affidavits from all parties
• In surrogacy-friendly states, judges grant pre-birth orders during the third trimester
• The hospital receives a copy of the order and lists the intended parents on the birth certificate at delivery
• In less friendly states, intended parents must adopt their own biological child after birth—a process that can take months

International Surrogacy: Shifting Borders

International surrogacy has been reshaped by a cascade of national bans over the past decade. Countries that once served as major surrogacy destinations have closed their doors.

• India banned commercial surrogacy for foreign intended parents in 2015 and for Indian citizens in 2021 (altruistic surrogacy for married Indian couples still permitted)
• Thailand banned foreign surrogacy in 2015 after the "Baby Gammy" scandal
• Cambodia criminalized surrogacy in 2016
• Ukraine remained a major destination for international surrogacy until the 2022 Russian invasion disrupted operations—it continues to operate but with significant logistical and legal risks
• Canada allows altruistic surrogacy but prohibits compensated surrogacy; intended parents may reimburse expenses only
• The United Kingdom permits surrogacy but the surrogate is always the legal mother at birth—parental orders must be obtained post-birth through a court process

Compensated vs. Altruistic: The Ethical Divide

The core ethical debate centers on whether paying a surrogate constitutes the commodification of women's bodies and children, or whether it fairly compensates a woman for significant physical and emotional labor.

Compensated surrogacy in the U.S. typically involves $30,000–$60,000 in direct compensation to the surrogate, plus $15,000–$30,000 in medical, legal, and agency fees. Surrogates undergo extensive screening—medical, psychological, and background checks—and must already have at least one child of their own. Advocates argue that informed, compensated surrogacy empowers women to make autonomous decisions. Opponents point to economic coercion, particularly when surrogates come from lower-income backgrounds than intended parents.

The Hague Conference on Private International Law has been working on a multilateral convention to harmonize international surrogacy rules since 2015. As of 2024, no agreement has been reached. The legal patchwork continues, and prospective parents must research the specific laws of their state—and their surrogate's state—before entering any agreement.

This article is for informational purposes only and does not constitute legal advice.