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.
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.
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:
Only after this contract is finalized will fertility clinics and medical professionals begin the medical process of surrogacy.
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 child’s 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.
Below is a list of some of the most frequently asked questions about surrogacy in Arizona:
No. Compensated surrogacy is not legal in Arizona. Arizona Revised Statute § 25-218 states that no person may enter into or assist in creating a surrogacy contract, making surrogacy contracts unenforceable.
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, rendering such contracts unenforceable.
In Arizona, the necessity for intended parents to complete an adoption after birth depends on their genetic relationship to the child and marital status:
Arizona explicitly prohibits second-parent adoptions. This prohibition affects unmarried couples and same-sex couples where one partner is not biologically related to the child:
The use of donor gametes in Arizona impacts the establishment of parental rights as follows:
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.
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.
Heather Strickland
Tucson, AZ
heather@myersstrickland.com
arizonaadoptionlaw.com
(520) 327-6041
Amy Wallace
Phoenix, AZ
amy@surrogacylawoffice.com
surrogacylawoffice.com
(866) 398-9331
Rita Meiser
Phoenix, AZ
rmeiser@meiserlaw.com
meiserlaw.com
(602) 650-2473
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