How State Laws Affect Surrogacy

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Assisted Reproductive Technology (ART) is the use of any method used to help conceive a child. This can include IVF treatments, artificial inseminations, and other instances where embryos are handled or aided in any way. It’s this science that allows egg donation, surrogacy, and families who would not otherwise exist to become possible. And for the most part, it’s something that remains unregulated by federal law.

There are no real federal regulations on items such as how many fetuses may be placed into a woman’s uterus or how many fetuses a woman is legally allowed to carry – these are personal decisions for the parties involved, with the advice of their physicians. The United States is also one of the few countries allowing compensated surrogacy, and not federally mandating upper or lower compensation limits.

The lack of involvement from lawmakers on a federal level likely stems from the desire to avoid passing laws that will impact the creation of life or, in some cases of ART, the abortion of fetuses.

As a result of this lack of federal involvement, state lawmakers are developing regulations and guidelines for what they believe to be best for the residents of their states. In some cases, these regulations might mandate the types of contracts that surrogates, egg donors, or intended parents can enter. In most cases, however, these laws do not affect the content of the contracts but instead deal with what sorts of intended parents are allowed to engage in ART in the respective state. These laws are often related to the state’s stance on LGBT rights and relationships.

The nature of state-by-state legislation is that regulations are constantly in flux and changing, creating a potentially confusing environment for many would be surrogates and intended parents. These state-by-state regulations also mean that surrogates residing in certain states may not be a potential match for some intended parents in other states, depending on each state’s laws.

For example, some states only allow for surrogacy when a couple is married and the intended mother’s egg and the intended father’s sperm are used to create the embryo. A surrogate living in such a state would not be able to be matched with intended parents who are either unmarried or need donor sperm or a donor egg.

With such complex laws that vary so vastly from state to state, it is incredibly important to make sure you’re working with an experienced fertility lawyer who is well versed in these laws. Growing Generations is proud to work with the International Reproductive Law Group, a nationwide law firm based in Los Angeles, California, for their egg donor and surrogacy cases.​

Kim Bergman, PhD, a licensed psychologist of 26 years, has specialized in the area of gay and lesbian parenting, parenting by choice and third party assisted reproduction for over two decades. Dr. Bergman has created a comprehensive psychological screening, support and monitoring process for intended parents, surrogates and donors. She is the co-owner of Growing Generations and is a member of the American Society for Reproductive Medicine, the American Psychological Association, the Los Angeles County Psychological Association, the Lesbian and Gay Psychotherapy Association, and the Gay and Lesbian Medical Association. She is on the national Emeritus board of the Family Equality Council. Dr. Bergman writes, teaches and speaks extensively on parenting by choice. Along with co-authors, she published “Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood” (Journal of GLBT Family Studies, April 2010). Dr. Bergman’s is the author of the book, Your Future Family: The Essential Guide to Assisted Reproduction (Conari Press 2019) as well as the children's book You Began as a Wish (Independent Press 2019). Dr. Bergman created her own family using third party assisted reproduction and she lives with her wife of 35 years. She has two adult daughters.