A recent article in the New York Times recounts the story of a gay couple (Senator Brad Hoylman and husband David Sigal) in New York having a child via surrogacy in California. The couple's heart-warming story of excitement and anticipation while hopping on cross-country plane rides for false alarms and the actual delivery of their daughter, Sylvia, now 3, is charming and amusing. Most parents will understand their elation. What may be a little trickier to understand is why this New York couple chose a surrogate all the way from California.
The couple’s decision was based entirely on the contractual concerns of surrogacy and state recognition of same-sex marriage. Each state has its own laws governing marriage and children, including laws that address surrogacy in very fine detail.
At this time, New York Domestic Relations Article 8, Section 122, identifies surrogacy agreements as “void and unenforceable” although the state’s courts do sometimes recognize parental rights of the intended parents on a case-by-case basis. California does acknowledge “gestational surrogacy agreements” under California Family Code Section 7600. In a case such as the New York couple where the intended parents have no genetic link to the surrogate, California assigns parental rights to the intended parents.
In the remaining states, laws vary widely. Just a few differences include:
- Georgia, Hawaii, South Carolina, South Dakota, and Wyoming have no laws addressing surrogacy at all.
- In Kentucky, there is no law addressing surrogacy specifically but a state supreme court case and attorney general’s opinion on the issue indicates uncompensated surrogacy agreements may be allowed.
- Maryland doesn’t allow payment for surrogacy or adoption.
- Michigan strictly forbids surrogacy and can fine any party to such an arrangement as much as $50,000 and five years in jail.
- Texas requires the intended parents to be married but it does not yet sanction same-sex marriage; it also requires every surrogacy contract to be validated in court in order to be enforceable.
- Utah requires intended parents to be married and one intended parent must be genetically related to the child; all surrogacy contracts must be validated in court.
In some states, the requirement for marriage of the intended parents prevents the option of surrogacy if the state has not adopted same-sex marriage laws. Some states consider payment to a surrogate to be a form of child selling and / or child slavery and recognize only uncompensated surrogacy agreements. Some have specific regulations on the handling of money in a compensated surrogacy.
State laws change as fast as they can be published on the internet so anyone interested in surrogacy is urged to check their home state’s legal regulations and restrictions on surrogacy before entering into any surrogacy agreement.