GESTATIONAL SURROGACY LAW NORTH DAKOTA

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Gestational Surrogacy is permitted by statute N.D. Cent. Code §§14-18, which states that a child born to a gestational carrier is the child of the intended parents.

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

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Is Gestational Surrogacy Legal in North Dakota?

Yes. Gestational Surrogacy is permitted by statute N.D. Cent. Code §§14-18, which states that a child born to a gestational carrier is the child of the intended parents for all purposes.

Is Traditional Surrogacy Legal in North Dakota?

No. Traditional Surrogacy is not permitted in North Dakota. Traditional Surrogacy contracts have been declared void and unenforceable by N.D. Cent. Code §14-18-05.

Is Compensated Surrogacy Legal in North Dakota?

Yes. North Dakota surrogacy laws do not prohibit or regulate the base compensation a gestational carrier 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 Dakota Surrogacy Contract

There are no state regulations that address the process of creating surrogacy agreements in North Dakota; however, intended parents and surrogates must work with separate surrogacy attorneys throughout the execution of the contract to ensure both parties’ interests and rights are protected.  These attorneys will negotiate a contract 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 Dakota

Pre-birth orders are granted to unmarried or married couples if at least one partner has a genetic connection to the child born via surrogacy. Single intended parents with a genetic link to their child can also be issued a pre-birth order. 

There is no legal standard for intended parents with no genetic connection to their child born via surrogacy so, in these cases, it is important to work with an experienced surrogate attorney to guide you through your journey. 

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Same-Sex Surrogacy in North Dakota

Q: Is Same-Sex Surrogacy Legal in North Dakota?
A: Yes. There are no statutes or published case law prohibiting same-sex surrogacy.  Same-sex couples and LGBT+ intended parents will experience generally the same surrogacy process as heterosexual 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 Dakota?
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 Dakota?

A: Yes. Gestational surrogate contracts are enforceable because they are permitted by North Dakota surrogacy laws.  Traditional surrogacy contracts; however, are void and unenforceable.

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

A: No. There are no particular laws for parents outside the United States who complete a surrogacy in North Dakota.  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: This situation typically arises if the child is born outside of the state. The parents then return to North Dakota to obtain a second parent adoption or stepparent adoption. In addition, intended parents with no genetic connection to their child may need to complete an adoption after birth. 

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

A: Yes. Stepparent and second-parent adoptions are available for those who are unable to obtain a parentage order.

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

A: Intended parents can usually obtain a pre-birth order in a North Dakota surrogacy, even if they use a donor egg, sperm, or embryo.  North Dakota laws state that “a donor is not a parent of a child conceived by means of assisted reproduction.” 

REPRODUCTIVE LAW PRACTITIONERS

Mike Gjesdahl
Fargo, ND
mike@giesdahllaw.com
(701-237-3009

William Harry
Fargo, ND
wharrie@nilleslaw.com
(701) 280-0762

Lynn Slaathau
Grand Forks, ND
lynn@nilsonbrandlaw.com
(701) 786-6040

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