Legalities of GS in 3 regions
So glad that you are able to answer legal questions here! (Despite having read the postings of surrogacy law by state, I still have no clue about most of it!)
I am in NY and as I understand it, surrogacy agreements here are not enforceable.
We haven't matched with a GS yet, but are talking to several friends/family members in various states. Before asking anyone, I'm wondering if you can give me a bit of guidance about a couple of areas.
How would things work if we were to have a surrogate from Ohio? Is the contract enforceable? Can we get a PBO?
What about Arizona?
Finally, how does Washington D.C. work (in terms of contracts and PBOs)? As I read the law, it can't happen...but what if the child is delivered in Maryland or Virginia instead? Does that change anything?
Since we are currently only considering having a friend or relative as a GS, is it legal to compensate (if a volunteer were to want compensation) without writing it into the contract since most states take issue with compensation for surrogates? (In the same vein, I'm assuming that even with a friend or member of the family, a contract should be written if for no other reason than to make sure we're legally covered in terms of insurance, access to records for the pregnancy, etc.)
I hate asking so many questions, but I don't want to put anyone in the difficult position of deciding whether or not to help us only to find out that they live in an area where it can't happen.
Thanks in advance for your input.
Hi. Congratulations on starting your surrogacy journey. I'm sorry you live in such a "difficult" state for surrogacy purposes (NY), but you can definitely choose the laws of the state in which your GS lives and and gives birth and then the laws of that state will apply to your surrogacy contract, not the laws of NY. That is typically the law that applies to surrogacy contracts anyway.
And, yes, you DO want a contract even though the GS will be a friend or relative. In fact, it is all the more reason to have a contract -- you want everything to be agreed upon ahead of time -- not just insurance issues, but also all the "pregnancy issues": how you both feel about multiples, amnio, selective reduction, termination. Also, you want all the "what if's" taken spelled out: what if you and your husband get divorced? what if you and your husband get hit by a bus while she is pregnant -- who becomes the legal guardian of the baby? If you can get all of these questions settled beforehand (indeed, before you all start your hormones!), then you can sit back and enjoy the pregnancy.
As to the specifics of the states you are considering --
DC: stay away. Surrogacy contracts are criminal and unenforceable.
VA: can work fine with a relative or close friend. Compensation is limited to medical expenses and living expenses. No PBO. In fact, you don't go to court at all. 25 days after the birth, you and the GS (and your spouses) file a Surrogate Consent and Report Form with Vital Records.
MD: Very GS-friendly. Can get a PBO (we get them all the time); okay to pay a fee to the GS.
Ohio: Okay, now you are starting to get out of the states where I am a member of the bar....so I'm less knowledgeable. My firm has not had a surrogate in Ohio, so I am not sure about Ohio. Here's what I'm thinking: Instead of just continuing to say "I don't know" on this forum and "I'm not allowed" to give legal advice about laws in another state (which, by the way is true -- but frustrating for you and for me), I'm going to start to use this forum to collect information that I can then pass on to other readers. But, I need the information I collect to be based on experiences you have had working with an attorney from that state. As I've said in answer to other questioners, lots of people do things that are not okay; it doesn't make it legal.
So, if any IP or GS or TS has been represented by an attorney who has advised them that surrogacy works (or doesn't work) in Ohio, can you please post here and give us the specifics?
AZ: Also not in my area of expertise. What I have read is that there is a statute that prohibits surrogacy (both TS and GS), but part of the statute was struck down by the AZ court of appeals as unconstitutional. So, what is going on in AZ? Is there an IP or surrogate who has experience in AZ? Even better, is there someone who has been represented by an attorney who can tell us what the situation is?
I hope this will turn out to be a useful approach -- I'll pass on whatever info I have (e.g. DC/MD/VA above) and then we'll use this forum to exchange information about other state laws -- but attorney-based information, please, not speculation (after all, this is a legal forum). Let's give it a try, okay?