Gestational Surrogacy is permitted in Idaho because no statute or published case law prohibits it.  However, recent case law (June 2016) confirmed that a non-genetic parent will not be issued a post-birth parentage order, but instead must complete a post-birth adoption in order to be recognized as a legal parent.   Pre-birth parentage orders are not available in Idaho, regardless of genetic connection to the child.  If no intended parent shares a genetic relationship with the child, then a full adoption must be completed.

Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Idaho, 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 Idaho.

Idaho State Seal

Is Gestational Surrogacy Legal in Idaho?

YesYes. Gestational surrogacy is permitted in Idaho because no statute or published case law prohibits it.  However, pursuing surrogacy in this state is a complex process because pre-birth orders are not available.

Is Traditional Surrogacy Legal in Idaho?

YesTraditional surrogacy is considered legal because no statute or published case law prohibits it.  Like gestational surrogacy, this is a complicated process in Idaho because pre-birth orders aren’t available. 

Is Compensated Surrogacy Legal in Idaho?

YesCompensated surrogacy is legal because no statute or case law prohibits 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 an Idaho Surrogacy Contract

There are no state regulations that address the process of creating a surrogacy agreement in Idaho.  However, intended parents and their surrogate must be represented by separate surrogate attorneys to ensure that both parties’ rights and interests are protected.

These attorneys will negotiate an agreement 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

Once the contract is signed by parties and executed, the medical process of surrogacy can begin. 

Determining Legal Parentage in Idaho

Pre-birth orders are not available in Idaho under any circumstance.  Only intended parents using their own egg or sperm can be granted a post-birth parentage order.  If no intended parent shares a genetic relationship with the child, then a full adoption must be completed post-birth.


Same-Sex Surrogacy in Idaho

Q: Is Same-Sex Surrogacy Legal in Idaho?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in Idaho?
A: No. There are no additional laws impacting same-sex parents in this state.


Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Idaho?

A: Since Idaho does not have a statutory rule on this, there is not a specific set of guidelines for when an Idaho judge may uphold the validity of a surrogacy arrangement. 

Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Idaho?

A: Yes. These Idaho surrogacy laws also apply to intended parents who live in other states. International intended parents and intended parents who live in another state needing to complete an adoption after birth cannot take advantage of a stepparent adoption in Idaho because the state requires a six-month minimum residency in Idaho before an adoption petition can be filed.

International intended parents who need to complete a stepparent or second-parent adoption will need to finish this legal step in another state.

Q: When do Intended Parents Need to Complete an Adoption After Birth?

A: Since only intended parents who have a genetic connection to the child can obtain a post-birth parentage order, any intended parent who has no genetic relationship to their child born via surrogacy must complete an adoption after birth but they must meet the six-month residency requirement before an adoption petition can be filed.

Q: Does Idaho 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 not permitted in Idaho but Idaho will honor a second-parent adoption order issued by another state. 

Stepparent adoptions are available to Idaho residents, whether married or unmarried when at least one of the intended parents is genetically related to the child

Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?

A: If intended parents in Idaho are not residents of the state, they will need to return to their own state to protect their parental rights through a post-birth adoption order. The Idaho Office of Vital Records will typically honor a second-parent adoption order from another state and update the birth certificate accordingly.

Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?

A: Any intended parent who uses a donor egg, sperm, or embryo (non-genetic intended parent) will have to complete a full adoption post-birth to establish in order to be recognized as a legal parent.


Monica Cockerille
Boise, ID
Grover Law Office, PLLC
(208) 576-4752

Kathleen McRoberts
Boise, ID
(208) 214-4584

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