GESTATIONAL SURROGACY LAW MAINE

The Maine Parentage Act of 2016 legalized surrogacy in Maine and created important regulations and eligibility requirements for the process. These clear surrogacy laws make it relatively easy to become a parent as long as you meet the state’s eligibility requirements and follow the legal processes. 

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

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Is Gestational Surrogacy Legal in Maine?

Yes. The Maine Parentage Act of 2016 legalized surrogacy in Maine and created important regulations and eligibility requirements for the process. It is both legal and a well regulated process.

Is Traditional Surrogacy Legal in Maine?

Yes. Traditional surrogacy is legal in Maine but with the following caveats:

  • First, a traditional surrogate must be a family member of an intended parent with whom she is entering into a surrogacy contract. 
  • Secondly, traditional surrogacy laws in Maine require a post-birth adoption process because traditional surrogates are the biological mothers of the babies they carry; therefore, the process is subject to the state’s adoption laws. 
  • Finally, a traditional surrogate in Maine must choose to give her consent to an adoption after the baby is born.

Is Compensated Surrogacy Legal in Maine?

Yes. According to Maine surrogacy laws, “a gestational carrier agreement may provide for payment of reasonable expenses.”  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 Maine Surrogacy Contract

Maine surrogacy laws set out a set of requirements for all gestational surrogacy contracts created in this state. 

By law, surrogates and intended parents in Maine must meet these requirements: 

  • Surrogate
    • Be at least 21 years old
    • Have previously given birth to at least one child
    • Have completed a medical evaluation and a mental health consultation 
    • Not be a traditional surrogate, unless she is a family member of the intended parents
  • Intended Parents
    • Have completed a medical evaluation and mental health consultation

Both intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure both parties’ interests and legal rights are protected.  Once intended parents, the surrogate and her spouse (if applicable) consent to and sign the surrogacy contract, the medical process of surrogacy can begin. 

Determining Legal Parentage in Maine

The Maine Parentage Act allows pre-birth orders for all intended parents, regardless of their genetic relationship to the baby born via surrogacy.  Intended parents will be able to obtain a pre-birth order as long as the requirements of the Maine surrogacy laws are met.

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Same-Sex Surrogacy in Maine

Q: Is Same-Sex Surrogacy Legal in Maine?
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 Maine?
A: No. There are no additional laws impacting same-sex parents in this state.

FAQ’s

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

A: Surrogacy contracts are enforceable as long as they meet the legal requirements provided in the Maine Parentage Act.

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

A: No. As long as their surrogate is a resident of Maine, international intended parents can complete a surrogacy in Maine. 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: Adoption is usually not needed in Maine because intended parents are able to obtain a pre-birth or post-birth order.  The exception to this is if intended parents from Maine complete a surrogacy in another state where they can’t obtain a parentage order or a post-birth adoption order, they can complete an adoption back in Maine.

Q: Does Maine Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

A: Yes. Maine does allow second-parent adoptions, although they are rarely necessary if the intended parents complete a surrogacy in Maine.

Stepparent adoptions are available to married couples.

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

A: Maine state law specifies that “a donor is not a parent of a child conceived through assisted reproduction” and that intended parents can obtain a parentage order in a Maine surrogacy regardless of any donor gametes used.  A surrogacy that uses a donor egg, sperm, or embryo is no different in Maine that a surrogacy that does not.

REPRODUCTIVE LAW PRACTITIONERS

Judith (Judy) Berry
Bridgton, ME
cberry@cjberrylaw.com
(207) 839-7004

Abigail Diggins
Portland, ME
adiggins@leblancyoung.com
(207) 772-2800

Janene Oleaga, Esq.
Portland, ME
janene@mainereproductionlawyer.com
(207) 200-6780

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