New Mexico surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in New Mexico?

Yes. N.M. Stat. Ann. 40-11A-801 states that gestational surrogacy contracts are neither permitted nor prohibited; therefore it is considered legal.    

Is Traditional Surrogacy Legal in New Mexico?

Yes. However, a traditional surrogate cannot receive base compensation for her services, any payments to her must meet the strict limits under the adoption statutes.  In addition, she will need to adhere to adoption laws regarding termination of her parental rights after the child is born.

Is compensated surrogacy legal in New Mexico?

Yes. There are no surrogacy laws in New Mexico that regulate how much 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 New Mexico Surrogacy Contract

There are no state regulations that address the process of creating surrogacy contracts in New Mexico.  Intended parents and surrogates must work with separate surrogacy attorneys for the drafting of the contract to ensure both parties’ interests and rights are protected. 

These attorneys will negotiate a surrogacy contract that addresses the following: 

• Surrogate compensation  and other financial information
• The rights and responsibilities of each party
• The potential risks and liabilities for each party and the steps to take should they occur
• How the intended parents’ rights will be established
• Contact expectations before, during, and after the surrogate pregnancy
• The plan for the hospital delivery
• And more

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

Determining Legal Parentage in New Mexico

In most cases, New Mexico surrogacy courts grant pre-birth parentage orders to married and unmarried couples with some genetic link to the child born via surrogacy. Depending on the circumstances and the overseeing judge, married and unmarried couples with no genetic link to the child born via surrogacy may also be granted a parentage order.  

Single intended parents; however, may have more trouble obtaining a parentage order. This is because New Mexico law favors having two parents who may share financial responsibility for a child.

Complications could arise if there is no parent to take the place of a gestational carrier on the birth certificate; this will depend on the overseeing judge.