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Opinion

June 6, 2012

Surrogacy laws differ drastically from state to state

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GREENVILLE — My husband and I were told we cannot have children naturally, and are considering hiring a surrogate mother to carry a baby through in vitro fertilization. My sister lives several states away near Toledo, Ohio, and has agreed to act as a surrogate mother for us.

 However, her friends at work told her that surrogacy wasn’t legal anymore. Is that true? — MB, Rockwall, Texas

Before reading further, you should understand that surrogacy is a legal minefield, with constantly-changing laws that differ drastically from state to state. If you are considering a surrogate pregnancy, you should consult with an attorney who specializes in that area.

The general answer to your question is that surrogate pregnancy contracts are legal in most states, but are banned and criminally punished in others. An Internet search should cast light on differing state-to-state laws, but your sister’s proximity to Michigan probably explains what she was told.

In Michigan (which contains part of the northern portion of the Toledo metropolitan area), the state legislature has declared surrogacy contracts to be void and unenforceable. In fact, any party who signs a surrogacy contract in Michigan (which can include the biological father or mother, egg or sperm donors, or the surrogate mother and her husband, if any) can be criminally liable for a misdemeanor punishable by a fine up to $10,000 and/or one year in jail!

Even harsher are the punishments Michigan doles out to those who induce or arrange surrogacy agreements — usually a surrogacy agency or attorney. Those actions are felonies, and carry up to a $50,000 fine and/or five years in jail. The only other jurisdictions with laws this harsh are New York, Arizona and Washington, D.C.

Thankfully, Texas law is drastically different, and is, in fact, quite pro-surrogacy. Texas law allows surrogacy contracts if they are approved by the court more than 14 days before the pregnancy begins — i.e., the date of the transfer of eggs, sperm, or embryos to the gestational mother. The Texas Family Code requires these contracts — called “gestational agreements” — to meet certain conditions, including:

(1) The intended parents must be married to each other;

(2) The gestational mother’s eggs may not be used for the pregnancy;

(3) All relevant people must sign a single written contract (including the prospective gestational mother, her husband if she is married, each donor, and each intended parent);

(4) The gestational mother, her husband (if any), and all donors must relinquish all parental rights and duties;

(5) The gestational mother and each intended parent must agree to exchange all relevant information regarding the mental and physical health of the gestational mother and each intended parent; and

(6)  The agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo.

Other minor requirements are also included in the law, and you should speak to an attorney or agency specializing in surrogacy contracts before making any decisions. If you still plan to ask your sister to carry your baby while she lives in another state, you should ensure that the laws of her home state do not criminalize or otherwise punish her service as a surrogate.

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