Surrogacy is not yet legal throughout the entire United States, nor in many other countries. The issue continues to be fairly controversial, with many people being adamantly against it.

What is surrogacy?

Even though surrogacy is still controversial in some circles, many people aspiring to become parents still pursue it as a viable option to conceive their own biological children. There are two kinds of surrogacy. The first is traditional surrogacy, where a surrogate mother is hired, impregnated with the aspiring father’s sperm, and carries the baby to term for the intended parents.

The second kind, called gestational surrogacy, involves in vitro fertilization (IVF). In this scenario the mother and father donate their eggs and sperm, and the embryo that results is placed into the surrogate mother’s uterus. She then carries the baby to term and surrenders the child to its biological parents as soon as it becomes practical.

Why surrogacy is illegal in some places

Some jurisdictions in the United States and elsewhere forbid surrogacy, in part due to the stigma that has persisted throughout surrogacy’s long history. But the majority of surrogacy laws nowadays were have been crafted in the shadow of the famous Baby M case.

Back in 1984, after a couple named William and Elizabeth Stern opted to pursue traditional surrogacy, the chosen surrogate mother, Mary Beth Whitehead, was impregnated with William Stern’s sperm and contracted to carry the couple’s baby to term. However, once the child was born, Whitehead refused to give the baby to the Sterns. She named the infant Melissa (aka Baby M in media reports at the time) and promptly claimed it as her own.

The resulting court case was heard by the New Jersey Supreme Court. The court ultimately refused to recognize the surrogacy contract. William Stern was awarded custody of Baby M, and Ms. Whitehead was legally allowed to visit the baby.

To avoid situations like this, laws governing surrogacy have been introduced in many jurisdictions, with some either restricting or outright forbidding surrogacy.

Of course, outside of the psychological and cultural issues that come into play, there are other reasons why surrogacy is controversial. Some people believe that low income women who hire themselves out as surrogates are being abused, with little regard paid to the powerful emotional bond that develops between a woman and her unborn child over the course of a pregnancy.

On the other hand, surrogacy can also prove beneficial for all involved. The compensation awarded to financially challenged surrogate mothers may enable them — and their families — to lead more comfortable lives after all is said and done. Plus, some women become surrogate mothers not only for the money but for altruistic reasons as well, recognizing that by renting out their wombs for approximately 9 months they are enabling another couple to experience the joy of raising their own biological offspring, which likely wouldn’t happen otherwise.

Where is surrogacy legal — and illegal?

Most states allow surrogacy but have set restrictions on the practice. In some states, however, such as Arizona and Indiana, pursuing surrogacy can present numerous legal hurdles while court rulings on the issue have been inconsistent.

In Louisiana, Michigan, and New York surrogacy contracts are either illegal or the birth certificate cannot include the names of the biological parents.

Here is a bit more information concerning the laws governing surrogacy specific to Arizona.

Surrogacy contracts are not recognized in Arizona. However, some courts permit pre-birth orders. A pre-birth order, also known as a Declaration of Parentage, is settled in the third trimester of the surrogate’s pregnancy. With a pre-birth order the names of the intended, biological parents are guaranteed to be placed on the child’s birth certificate.

The intended parents may successfully carry out this order so long as one of the partners is biologically related to the child. However, heterosexual couples must donate both eggs and sperm to the surrogate mother. These rules tend to be restrictive for homosexual couples though, even if one of the partners is related to the child.

Only the parent biologically related to the child can get his or her name on it’s birth certificate. The other partner may file for a second-parent adoption. Rulings on second parent adoption vary based on the situation and can depend on whether the same-sex couple lives in Arizona or not.

The situation in Arizona is unfavorable for unrelated parents. Pre-birth orders aren’t usually recognized when the intended parents are unrelated to the surrogate mother. However, results for intended parents vary from location to location, and some judges are more favorable to pre-birth orders than others. Therefore, attorneys can better facilitate the process for intended parents because they’re familiar with the court rulings.

Unlike the state of Arizona, many countries outside of the U.S. recognize surrogacy: Canada, Belgium, Denmark, Ukraine, South Africa, and the U.K being among them. Surrogacy is currently legal in Russia, but may become illegal soon. Of course, in many countries surrogacy remains illegal, including several countries where you might not expect it to be. Finland, France, Germany, Hong Kong, India, Italy, Japan, Mexico, Spain, and Thailand all have laws on the books restricting surrogacy in their respective jurisdictions.

In conclusion, surrogacy laws and rulings vary in different states and countries. Of course, if you live in a state where surrogacy is illegal, you can always go to another state or country to hire a birth surrogate. The other option is adoption.

But if you live in Arizona and are considering having a child through surrogacy, you would be wise to consult an attorney familiar with the specific laws governing the practice in the state before going any further. Doing so could save you many a headache a little further down the road.

Call the Family Law Team at (480) 467-4348 to discuss your case today.

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