GESTATIONAL SURROGACY LAW MISSISSIPPI
There are no statutes or published case law specifically permitting or prohibiting surrogacy in Mississippi; therefore, it is considered legal.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Mississippi, 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 Mississippi.
Is Gestational Surrogacy Legal in Mississippi?
Yes. Gestational Surrogacy is permitted because no statute or published case law prohibits it. In general, courts in the state are more favorable to married couples with at least one partner who is genetically related to the child born via surrogacy. However, the rulings on individual surrogacy cases will be determined by the court and the judge overseeing the case.
Is Traditional Surrogacy Legal in Mississippi?
Yes. Traditional surrogacy is considered legal because there are no surrogacy laws prohibiting it.
Is Compensated Surrogacy Legal in Mississippi?
Yes. Compensated surrogacy is legal because there are no surrogacy laws prohibiting it; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Mississippi Surrogacy Contract
Because there are no surrogacy laws in Mississippi, there are no specific legal regulations that must be followed when drafting a Mississippi surrogacy contract. However, intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure that each parties rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
- Rights and responsibilities of each party
- Potential risks and liabilities of each party
- Surrogate compensation and other financial information
- Contact expectations before, during and after the surrogacy process
- Plans for the hospital stay
- Steps for establishing the intended parents parental rights
- And more
Once this contract is complete and signed by both parties, the medical process of surrogacy can begin.
Determining Legal Parentage in Mississippi
In general, Mississippi surrogacy courts do grant pre-birth orders, although their availability is often based on the judge overseeing the surrogacy case. Because the state tends to favor heterosexual couples, straight couples can usually obtain a pre-birth order, regardless of their marital status or whether they use a donated egg, sperm, or embryo.
Same-sex couples and LBGT+ intended parents may have a more difficult time establishing their parental rights in a Mississippi surrogacy, but its likely that they can also obtain a pre-birth order, no matter their marital status.
Same-Sex Surrogacy in Mississippi
Q: Is Same-Sex Surrogacy Legal in Mississippi?
A: Yes. Same-sex surrogacy is considered legal. There are no surrogacy laws in Mississippi that specifically apply to same-sex couples and LGBT+ intended parents, but certain judges and courts may require additional legal steps to establish parental rights in a same–sex surrogacy.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Mississippi?
A: No. There are no surrogacy laws in Mississippi that specifically apply to same-sex couples and LGBT+ intended parents but, as mentioned above, certain judges and courts may require additional legal steps to establish parental rights in a same-sex surrogacy.
FAQs
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Mississippi?
A: This is unclear; there are no laws regarding whether Mississippi surrogacy contracts are enforceable. However, since a surrogacy contract is like any other legal contract, it is presumed that the contract would be enforceable. It is important to work with an experienced surrogate attorney to guide you through this process.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Mississippi?
A: No. There are no particular laws for parents outside the United States who complete a surrogacy in Mississippi. 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: In most Mississippi surrogacies, intended parents will not need to complete an adoption after birth because they can likely obtain a pre-birth order. However, if the overseeing court will not grant a pre- or post-birth parentage order, an adoption will typically be necessary after the baby is born. This scenario is likely to occur in two instances:
- If neither intended parent is genetically related to the child born via surrogacy
- In a traditional surrogacy
Q: Does Mississippi Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Mississippi courts grant second-parent adoptions or stepparent adoptions to heterosexual couples but they must be married. If the child is born outside of the state, the parents then return to Mississippi to obtain a second-parent adoption or stepparent adoption in Mississippi.
Second-parent adoptions for same-sex parents or individuals is determined on a case-by-case basis.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, how can unmarried non-biological intended parents protect their parental rights?
A: In most cases, they will need to get married and complete a stepparent adoption.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: There is no statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child. In practice, there should be no additional legal steps for intended parents who use a donor egg, sperm or embryo; however, some judges may not allow these intended parents to obtain a pre- or post-birth order in which case an adoption may be necessary.
REPRODUCTIVE LAW PRACTITIONERS
Dan Davis
Tupelo, MS
dan@dandavisattorney.com
(662) 841-1090
Bo Gregg
Ridgeland, MS
bgregg@wrightlaw.net
(601) 366-8090
Ashley Pittman
Jackson, MS
apittman@apittmanlaw.com
(601) 326-2714
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