Whether surrogacy agreements are legal varies from state to state. Like many other important issues that affect families, each state has the option to use its own political and legal process to allow or restrict surrogacy.
In most cases, states have simply decided to do neither. Most states neither allow nor forbid surrogacy agreements.
What this means in practice is that people can enter surrogacy contracts in these states. Unless there is a law to the contrary, consenting adults are usually free to enter agreements with each other.
However, they must do so aware that there is no law on the books protecting their agreement or providing a framework for it.
Many states, including California, have enacted laws allowing for these types of agreements. On the other hand, there are other states which have prohibited or sharply restricted surrogacy agreements. One state, for example, makes these agreements void if the agreement calls for a woman to receive compensation for carrying a child.
The rights and responsibilities of those involved will depend on the contract
Especially in states that have no laws about surrogacy agreements, what the agreement itself says will be critically important in determining the rights and responsibilities of those involved.
The agreement must clearly set out the obligations of all sides and explain what will happen in the event of a dispute or other contingency.
Moreover, each state may interpret the same contract very differently just because of that state’s laws and practices. While surrogacy often transcends state or even national borders, it is important for those involved to know both which state’s court would hear a case about their agreement and how that court would view the agreement.
To re-cap, surrogacy is permitted in most states, some more explicitly than others.
But, it is still a complicated legal process that can have surprise pitfalls that can lead to some very disappointing results.