GESTATIONAL SURROGACY LAW ARIZONA
Arizona expressly prohibits surrogacy under Arizona Revised Statute § 25-218 which states that no person may enter into or assist in creating a surrogacy contract, making surrogacy contracts unenforceable. The statute further establishes a rebuttable presumption that the surrogate is the legal mother and her husband, if any, is the legal father. However, couples and individuals now routinely petition Arizona courts for an order declaring them the legal parents of a child born through a surrogate.
After a 1994 Arizona court decision ruled that intended parents can rebut the statutory presumption that the gestational carrier is the legal mother of a child, Soos v. Superior Court (1994), courts now grant such pre-birth orders, but the surrogacy contracts remain unenforceable.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Arizona, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Arizona.
Is Gestational Surrogacy Legal in Arizona?
Technically, gestational surrogacy is legal but under Arizona Revised Statute § 25-218, surrogacy contracts are statutorily unenforceable. Despite this, gestational surrogacy continues to be practiced in Arizona. Some attorneys will not prepare surrogacy agreements, while others prepare letters of understanding or agreements that include exculpatory language about their un-enforceability.
Is Traditional Surrogacy Legal in Arizona?
The Arizona statute that prohibits gestational surrogacy contracts also prohibits traditional surrogacy contracts so pursuing this route comes with legal risks.
Is Compensated Surrogacy Legal in Arizona?
No. Compensated surrogacy is not legal in Arizona. Arizona Revised Statute § 25-218 which states that no person may enter into or assist in creating a surrogacy contract, making surrogacy contracts unenforceable.
Creating an Arizona Surrogacy Contract
Since Arizona explicitly prohibits surrogacy, there is not a specific set of guidelines for when an Arizona judge may uphold the validity of a surrogacy arrangement. Parties should articulate their intentions, desires, roles, and responsibilities as clearly and specifically as possible to provide proper framework for dispute resolution should an issue arise. Both intended parents and their surrogate must be represented by separate surrogate attorneys to ensure both parties rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities, and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Only after this contract is finalized will fertility clinics and medical professionals begin the medical process of surrogacy.
Determining Legal Parentage in Arizona
Following a 1994 Arizona court decision allowing the intended parents to rebut the presumption that the gestational carrier is the legal mother, Arizona courts began granting pre-birth parentage orders (while still maintaining that the underlying contracts are unenforceable). Pre-birth parentage orders are now likely to be granted when both the intended parents, regardless of marital status, are genetically related to the child. When neither intended parent shares a genetic relationship to the child, a parentage order will not be possible, and a married heterosexual couple must instead wait until after the childs delivery to file for a stepparent adoption. Second-parent adoptions are prohibited in Arizona, leaving same-sex couples with no genetic relation to the child with little to no recourse for securing their parental rights unless they go outside the state to obtain a second-parent adoption.
Same-Sex Surrogacy in Arizona
Q: Is Same-Sex Surrogacy Legal in Arizona?
A: Yes but again, Arizona expressly prohibits surrogacy under Arizona Revised Statute § 25-218 which states that no person may enter into or assist in creating a surrogacy contract, making surrogacy contracts unenforceable.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Arizona?
A: Arizona will only grant pre-birth orders when both the intended parents, regardless of marital status, are genetically related to the child. Since second-parent are prohibited in Arizona, leaving same-sex couples with no genetic relation to the child with little to no recourse for securing their parental rights unless they go outside the state to obtain a second-parent adoption.
FAQs
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Arizona?
A: No. Arizona expressly prohibits surrogacy under Arizona Revised Statute § 25-218 which states that no person may enter into or assist in creating a surrogacy contract, making surrogacy contracts unenforceable.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Arizona?
A: No. There are no particular laws for parents outside the United States who complete a surrogacy in Arizona, they are subject to the same surrogacy restrictions as domestic intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: If intended parents cannot receive a pre- or post-birth order in Arizona, they will need to complete an adoption order post-birth. However, what kind of order is required will depend upon several factors. It is important to consult with an experienced surrogate attorney to explain what this process would look like in your unique situation.
Q: Does Arizona Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Second-parent adoptions are prohibited in Arizona. Stepparent adoptions are available only to married heterosexual couples. When neither intended parent shares a genetic relationship to the child, a parentage order will not be possible, and a married heterosexual couple must instead wait until after the childs delivery to file for a stepparent adoption.
Q: If Intended Parents Cannot Complete a Second-Parent Adoption, How Can Unmarried Non-Biological Intended Parents Protect their Parental Rights?
A: An unmarried couple may travel to another state to complete a second-parent adoption. Upon return, Arizona will amend and reissue the birth certificate with both parents names included.
Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?
A: When an egg or sperm donor is used and at least one of the intended parents is genetically related to the child, a pre-birth order may be possible, but results vary greatly by county and judge. If neither intended parent is genetically related to the child, they can typically go outside the state to obtain a second-parent adoption.
REPRODUCTIVE LAW PRACTITIONERS
Heather Strickland
Tuscon, AZ
heather@myersstrickland.com
(520) 327-6041
Amy Wallace
Phoenix, AZ
amy@surrogacylawoffice.com
(866) 398-9331
Rita Meiser
Phoenix, AZ
rmeiser@meiserlaw.com
(602) 650-2473
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