GESTATIONAL SURROGACY LAW NORTH CAROLINA

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Gestational Surrogacy is permitted in North Carolina because no statute or published case law prohibits it and many intended parents have been successful in using this method to build their families.

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

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Is Gestational Surrogacy Legal in North Carolina?

Yes. Gestational Surrogacy is permitted because no statute or published case law prohibits it and most courts and judges are favorable to the process. 

Is Traditional Surrogacy Legal in North Carolina?

Yes. Traditional surrogacy is permitted because no statute or published case law prohibits it. However, some courts may name the biological father on the birth certificate, but they may also name the traditional surrogate as the mother. In these cases, the intended mother will need a parentage order or an adoption to have her name on the birth certificate.  

Traditional surrogate journeys are rare due to the risks associated with pursuing this path and most all attorneys will not complete a traditional surrogacy.

Is Compensated Surrogacy Legal in North Carolina?

Yes. There is no North Carolina surrogacy legislation that limits the amount of base compensation a surrogate can receive; 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 North Carolina Surrogacy Contract

Surrogacy contracts in North Carolina must be created by surrogate attorneys; intended parents and surrogates must work with separate surrogacy attorneys throughout the execution of the contract to ensure each parties’ rights and interests are protected.  

These attorneys will negotiate an agreement that addresses at least the following:

  • The rights and responsibilities of each party
  • Any potential risks and liabilities and the steps to take should they occur
  • Surrogate compensation and other financial information, like surrogacy insurance 
  • Agreements on sensitive issues like selective reduction and termination
  • Contact expectations
  • And more

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

Determining Legal Parentage in North Carolina

Many judges will grant pre-birth orders but it varies by county and by specific situations. Pre-birth orders are typically granted to:

  • Married couples if at least one intended parent is genetically related to the child born via surrogacy
  • Unmarried couples who are both genetically related to the child
  • A single intended parent who is genetically related to the child
  • Couples and single individuals using donor embryos or a donor egg and sperm   

It is important to note that some North Carolina surrogacy judges may not recognize the parentage of couples and single parents with no genetic link to their child born via surrogacy. In these cases, these individuals may need to complete an adoption after birth.

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Same-Sex Surrogacy in North Carolina

Q: Is Same-Sex Surrogacy Legal in North Carolina?
A: Yes. There are no statutes or published case law prohibiting same-sex surrogacy in North Carolina so it is considered legal.  Same-sex couples and LGBT+ intended parents will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg or sperm donor to complete the IVF procedure. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in North Carolina?
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 North Carolina?

A: Yes. Surrogacy contracts are enforceable if both parties agree to and sign the statements within it.

Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in North Carolina?

A: No. There are no particular laws for parents outside the United States who complete a surrogacy in North Carolina.  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: Any intended parent that cannot be issued a pre- or post-birth parentage order must complete an adoption to establish their parental rights to their child after he or she is born.

In most cases where the baby is being born via gestational surrogacy, a judge will issue a pre-birth order to both members of the married couple, even the non-genetically related parent(s). However, if neither intended parent is related to the baby, they may need to establish their parental rights through a different legal process like an adoption.

Q: Does North Carolina 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 prohibited in North Carolina. 

Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect Their Parental Rights?

A: In North Carolina, partners need to be married to ensure that each has equal parental rights.  A non-biological parent can only be granted parental rights through a stepparent adoption or, in some cases, through a surrogacy pre-birth order.

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

A: There is not a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo, or child.  It is important to work with an experienced surrogate attorney when using a donor egg, sperm, or embryo to help you establish your parental rights.

REPRODUCTIVE LAW PRACTITIONERS

Connie Vetter
Charlotte, NC
ConnieVetter@CJVLaw.com
(704) 333-4000

Jennifer Tharrington
Raleigh, NC
www.carolinafamilylaw.com
(919) 783-9669

Jeffrey Williams-Tracy
Charlotte, NC
jswt@hnftlaw.com
(704) 401-0007

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