GESTATIONAL SURROGACY LAW MARYLAND
Gestational Surrogacy was implicitly approved by the highest court in Maryland in In re Roberto d.B. (2003); it is implicitly authorized and permitted in the state pursuant to Maryland published case law. Despite the lack of statutory law on surrogacy, surrogacy arrangements are typically found enforceable by Maryland courts, yet the results and legal processes do tend to vary by judge.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Maryland, 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 Maryland.
Is Gestational Surrogacy Legal in Maryland?
Yes. Currently, there are no surrogacy laws in Maryland. However, in 2007, the Maryland Court of Appeals made a ruling that indirectly approved of gestational surrogacy arrangements.
Is Traditional Surrogacy Legal in Maryland?
Yes. Yes, but the process does come with risks. In 2000, the Maryland Attorney General released an opinion on compensated traditional surrogacy arrangements stating surrogacy contracts that involve the payment of a fee to the birth mother are, in most instances, illegal and unenforceable under Maryland law. The enforceability of a traditional surrogacy contract is uncertain, and the Intended Mother would have to pursue an adoption to finalize her parental rights. Consequently, most attorneys will not handle traditional surrogacy cases.
Is Compensated Surrogacy Legal in Maryland?
Yes. There are no surrogacy laws in Maryland regulating the base compensation that a gestational surrogate can receive for her services; 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 Maryland Surrogacy Contract
There are no state laws that address the process of creating surrogacy agreements in Maryland. However, intended parents and their surrogate must be represented by separate surrogacy lawyers to ensure that the rights and interests of each party are protected. These attorneys will negotiate an agreement that addresses at least the following:
- Rights and responsibilities of each party
- Potential risks and liabilities for each party, and steps to follow should one occur
- Surrogate compensation and other financial details, including surrogacy insurance
- Contact expectations
- And more
Once the contract is signed by both parties and executed, the medical process of surrogacy can begin.
Determining Legal Parentage in Maryland
Although it varies by court and can depend on the judge, pre-birth orders are available to intended parents regardless of their marital status, sexual orientation, or genetic relationship to the child. If a parentage order is unable to be obtained, post-birth adoptions are permitted and available to both married and unmarried couples.
Same-Sex Surrogacy in Maryland
Q: Is Same-Sex Surrogacy Legal in Maryland?
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 Maryland?
A: No. There are no additional laws impacting same-sex parents in this state.
FAQs
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Maryland?
A: There are no surrogacy laws in Maryland that address the enforceability of surrogacy contracts. 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 Maryland?
A: No. International intended parents are subject to the same Maryland laws 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 a parentage order is unable to be obtained, post-birth adoptions are permitted and available to all intended parents regardless of their marital status, sexual orientation or genetic relationship to the child. However, since most all intended parents can obtain a pre-birth parentage order, post-birth adoptions are rarely needed.
A post-birth adoption may be required when the intended parents are from Maryland but complete surrogacy in a state where they are unable to secure their parental rights via parentage order or adoption. In these situations, the intended parents may return to Maryland to complete either a second-parent or stepparent adoption.
Q: Does Maryland Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are available in Maryland. Unmarried intended parents who cannot establish their parentage through a parentage order can complete a post-birth adoption. Married intended parents can complete a stepparent adoption.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: Since pre-birth orders are available to intended parents regardless of their marital status, sexual orientation, or genetic relationship to the child, intended parents can typically obtain a pre-birth parentage order even if they use a donor egg, sperm, or embryo.
REPRODUCTIVE LAW PRACTITIONERS
Jennifer Fairfax
Silver Spring, MD
JFairfax@jenniferfairfax.com
(301) 221-9651
Peter Wiernicki
Rockville, MD
PJW@irw-law.com
(301) 230-2446
Meryl B. Rosenberg
Potomac, MD
Meryl@artparenting.com
(301) 217-0074
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