GESTATIONAL SURROGACY LAW NEBRASKA
R.R.S. Neb. 25-21, 200 declares surrogacy contracts to be void and unenforceable and that the biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child. Thus, statute does allow surrogacy practice in limited scenarios. Pre-birth parentage orders are prohibited in the state of Nebraska, but courts may grant post-birth orders to biological fathers, and biological fathers only. All other intended parents must go through a post-birth adoption process. Stepparent adoptions are permitted in the state, while second-parent adoptions are not.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Nebraska, 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 Nebraska.
Is Gestational Surrogacy Legal in Nebraska?
Yes. Despite Nebraska’s statutory language holding surrogacy contracts as void and unenforceable, the practice of surrogacy continues to be allowed in the state. However, pursuing surrogacy in Nebraska carries a notable level of risk due to the statutory restrictions the state places on surrogacy. Because of the increased legal risk, it’s important that you speak with a Nebraska surrogacy attorney before you choose this path.
Is Traditional Surrogacy Legal in Nebraska?
Yes. Traditional surrogacy is technically permitted in Nebraska because no statute directly prohibits it. However, the Nebraska surrogacy statute holds all surrogate contracts (including traditional surrogacy contracts) as void and unenforceable. Therefore, pursuing surrogacy in this state is risky because a Nebraska court may find the agreement unenforceable if challenged.
Is Compensated Surrogacy Legal in Nebraska?
No. Compensated surrogacy is not legal in Nebraska.
Creating a Nebraska Surrogacy Contract
Because surrogacy contracts are void and unenforceable, all surrogacy agreements must be created as “Memoranda of Understanding” rather than surrogacy contracts. This Memorandum is not legally binding, so it carries a degree of risk that it may not be enforced or upheld if a dispute later arises between the parties.
Determining Legal Parentage in Nebraska
Pre-birth orders are not granted in Nebraska and gestational carriers are initially named on birth certificates with a biological father. The Nebraska surrogacy laws recognize that a biological father shall have all rights to a child born via surrogacy. Therefore, courts will in practice grant post-birth parentage orders only to genetic fathers. All other intended parents must go through a post-birth adoption process.
Same-Sex Surrogacy in Nebraska
Q: Is Same-Sex Surrogacy Legal in Nebraska?
A: Yes. Same-sex surrogacy is legal in Nebraska because there is no statute prohibiting it. Same-sex couples and LBGTQ+ individuals are subject to the same restrictions as heterosexual couples and individuals.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Nebraska?
A: No. There are no particular Nebraska surrogacy laws that specifically affect same-sex couples or LBGTQ+ individuals in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Nebraska?
A: No. Surrogacy contracts, under the law, are void and unenforceable in court.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Nebraska?
No. There are no particular laws for parents outside the United States who complete a surrogacy in Nebraska, they are subject to the same surrogacy restrictions 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: The partner or spouse of the genetic father of a child born via surrogacy will need to complete an adoption to protect his/her parental rights, whether or not they are genetically related to the child born via surrogacy.
Q: Does Nebraska 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 available in Nebraska, and the state will not honor a second-parent adoption from another state. A Nebraska couple must be married and complete a stepparent adoption to establish parental rights.
Q: If Intended Parents Cannot Complete a Second-Parent Adoption, How Can Unmarried Non-Biological Intended Parents Protect Their Parental Rights?
A: They cannot; the spouse of a biological intended father in a Nebraska surrogacy must be married to him in order to establish parental rights in an adoption after birth.
Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?
A: There are no laws in Nebraska that address egg, sperm or embryo donation, which means the Nebraska surrogacy law regarding a biological father is the overseeing legislation in this situation. Consequently, the spouse of a biological father will need to complete an adoption after birth in order to establish parental rights. If a sperm donation is used to conceive the child born via surrogacy, both intended parents may need to adopt their child after birth.
REPRODUCTIVE LAW PRACTITIONERS
Kelly N. Tollefsen
Emilee Boyle Gehling
Sioux City, IA (licensed in NE)
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