Gestational Surrogacy Law in New Mexico
N.M. Stat. Ann. 40-11A-801 states that New Mexico's gestational surrogacy contracts are neither permitted nor prohibited; therefore it is considered legal. Pre-birth parentage orders can be obtained by nearly any intended parent in any circumstance, with the exception of single intended parents who may have trouble obtaining a parentage order depending on the judge.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in New Mexico, 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 New Mexico.
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.
Same-Sex Surrogacy in New Mexico
Is same-sex surrogacy legal in New Mexico?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.
Are there any additional laws impacting same-sex parenting in New Mexico?A: No. There are no additional laws impacting same-sex parents in this state.
Other questions about New Mexico's surrogacy framework
Are surrogacy contracts (whether compensated or altruistic) enforceable in New Mexico?
A: This is unclear. New Mexico surrogacy laws do not specify 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.
Are there particular laws for parents outside the U.S who complete a surrogacy in New Mexico?
A: No. International intended parents are subject to the same New Mexico surrogacy 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.
When do intended parents need to complete an adoption after birth?
A: Usually, a post-birth adoption in a New Mexico surrogacy is not an option for establishing parental rights. However, if intended parents were to complete a traditional surrogacy, they would likely need to complete an adoption after the traditional surrogate relinquished her parental rights through the proper adoption legal process.
Q: Does New Mexico Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. New Mexico does allow second-parent adoptions. If an adoption is necessary (which is rare in a New Mexico surrogacy), unmarried intended parents would complete a second-parent adoption, while married intended parents would complete a stepparent adoption. This situation typically arises if the child is born outside of the state. The parents then return to New Mexico to obtain a second-parent adoption or stepparent adoption.
What happens in cases where intended parents use a donor egg, sperm or embryo?
A: Intended parents who use a donor egg, sperm, or embryo can usually obtain a pre-birth order regardless of the genetic connection to their child born via surrogacy in New Mexico because NM Stat.§ 40-11A-702 states that donors of eggs, sperm, or embryos are not the parents of children conceived by assisted reproduction.
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