IFLG - Are Surrogacy Contracts Enforceable

Are Surrogacy Contracts Enforceable?

Laws governing surrogacy vary widely from state to state in the U.S. Some states have enacted laws rendering surrogacy contracts unenforceable in whole or in part, and a few states deem compensated surrogacy illegal, essentially shutting down surrogacy within the state almost entirely.

Engaging an attorney experienced in assisted reproduction technology, and having a properly drafted surrogacy contract, are essential in several ways. Doing those things ensures the intentions of all parties to the agreement—intended parents, surrogate, surrogate’s spouse—are clearly stated and that the rights and responsibilities of each party are clearly established and protected.

Unenforceable Surrogacy Contracts Equal Surrogacy Ban

The surrogacy contract makes it clear that the intended parents want to become the legal parents and agree to take all responsibility for the child or children resulting from the ART procedure, and that the surrogate does not want those parental rights. The agreement should make it clear that the surrogate intends to bear a child or children for the IPs and agrees, with her husband or significant other, if applicable, to ensure a healthy pregnancy to the best of her ability.

An unbalanced agreement, one that ensures the needs and rights of only one of the parties, won’t do. To work, the agreement must be fair and balanced in considering all parties’ needs, rights, obligations and responsibilities. In instances of “altruistic” surrogacy, in which the surrogate, often a family member, is not compensated, the surrogacy contract is perhaps even more important in clearly establishing and protecting the rights and responsibilities of each party.

That’s why, when states render surrogacy agreements unenforceable, few surrogacies occur: Few intended parents or surrogates are willing to take a chance on a casual arrangement with such potentially life-changing consequences and risk.

Laws Governing Surrogacy Contracts Vary State to State

In a backlash to the notorious 1986 Baby M case, in which the surrogate refused to relinquish custody of the baby to the intended parents, courts and legislatures in several states, including New York, New Jersey and Michigan, as well as Washington, D.C., banned surrogacy or surrogacy contracts. 

Of these original naysayers, only the ban in Michigan remains. As reported by the legal newsletter “Above the Law,” despite several efforts to embrace modern society, technology and the law, the ban on surrogacy in Michigan makes all surrogacy contracts, agreements, or arrangements “void and unenforceable as contrary to public policy.” In addition, surrogacy contracts for compensation are subject to criminal penalties.

One by one, however, most states have been rolling back those surrogacy bans and passing laws that regulate fertility treatments and family-building technologies such as egg donation, sperm donation, in vitro fertilization (IVF), and surrogacy, protecting the parties, and honoring their intentions.

The Washington, D.C., ban on surrogacy agreements ended in 2017, four years after the change was first introduced. Before the new law took effect, individuals could be fined $10,000 simply for entering into a surrogacy agreement. 

Advocates and lawmakers also worked for several years to end New Jersey’s surrogacy ban before finally succeeding in 2018. The state legislature passed bills lifting the ban on surrogacy contracts in 2012 and 2015; both times, then-Governor Chris Christie vetoed them, citing concerns about “the profound change in the traditional beginnings of a family.”

The New York surrogacy ban ended in April 2020, as lawmakers instituted standards for legally enforceable surrogacy agreements and enacted the strongest “surrogate bill of rights” in the world (this bill becomes effective February 15, 2021).

Louisiana is the only state to move to go backward rather than forward. The state passed Surrogacy Bill HB 1102 on August 1, 2016. This bill restricts gestational surrogacy to heterosexual married couples using their own gametes and places onerous requirements on such arrangements, including a strict no-compensation requirement. Commercial surrogacy is therefore prohibited in Louisiana. If one enters into a surrogacy agreement that is not sanctioned by the new law, anyone involved is subject to civil and criminal penalties.

Experienced Fertility Lawyers Make Sense of Confusing Laws

It should be noted, however, that even in some states where surrogacy is legal, surrogacy laws exist, and surrogacy contracts are enforceable, the law still imposes limitations on who may legally participate in surrogacy (such as requiring intended parent couples to be married). An experienced fertility lawyer can help intended parents and surrogates navigate the disparate laws to be sure they and the new family are protected.

Our IFLG team of experienced fertility attorneys and paralegals has developed an extensive network of lawyers throughout the United States who specialize in ART law and surrogacy agreements. We are always available to answer questions about parenting through surrogacy.

If you’re wondering, “Are surrogacy contracts enforceable?” you can trust IFLG to help you work through the details. We are ready to help intended parents and surrogates to navigate the laws and regulations governing this rapidly changing field of family law.

Rich Vaughn
Rich Vaughn
clients@lseo.com

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.