Gestational Surrogacy Law in Louisiana

Is Gestational Surrogacy Legal in Louisiana?

Yes but in very limited circumstances. Surrogacy Bill HB 1102 (effective August 1, 2016) legalized gestational surrogacy arrangements but only in very restrictive instances where the intended parents are Louisiana residents and are a married heterosexual couple who are both genetically related to the child (i.e., neither a sperm nor egg donor was used).

Is Traditional Surrogacy Legal in Louisiana?

No. Under La. Rev. Stat. § 9:2718, contracts that compensate a traditional surrogate are void and unenforceable as contrary to public policy. 

Is Compensated Surrogacy Legal in Louisiana?

No. The 2016 Louisiana Gestational Carrier Act forbids surrogate compensation.

Creating a Louisiana Surrogacy Contract

Surrogacy contracts in Louisiana are binding and enforceable for married, heterosexual couples who both use their own embryo/sperm if they are in writing, signed by both parties, and found in accordance with all requirements set forth under the Act (see below). Furthermore, each party must have resided in Louisiana for at least 180 days prior to the execution of a surrogacy contract and it must be court-approved prior to any embryo transfer. 

In order for a surrogacy contract to be enforceable in a court of law, it must:

• Be signed by the intended parents, the surrogate, and her spouse (if applicable)
• Be approved by a court before the medical process of surrogacy begins
• Be altruistic in nature
• Not require a surrogate to terminate a pregnancy for any reason, including “an actual or potential disability, impairment, genetic variation, or any other health condition or a discrimination based on gender, or for the purposes of the reduction of multiple fetuses”

In addition, the surrogate and intended parents must meet the following requirements:

• Surrogates
• Be between the ages of 25-35
• Have given birth to at least one child
• Agree to become pregnant with the intended parents’ gametes via embryo transfer
• Have undergone two counseling sessions with a mental health professional prior to executing the contract
• Agree to attend a minimum of one post-birth counseling session
• Intended Parents
• Acknowledge that the surrogate has sole authority with respect to medical decision-making, consistent with the rights of a pregnant woman carrying her own child
• Have a valid will or succession plan
• Prove that the intended mother has “medical necessity” to pursue surrogacy rather than traditional reproductive methods

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 Louisiana

Because of Louisiana surrogacy laws, only married heterosexual couples who are residents of Louisiana and who are both genetically related to the child (i.e., neither a sperm or egg donor was used) can obtain a pre-birth parentage orders. Intended parents in any other situation cannot obtain a pre-birth or post-birth order.