GESTATIONAL SURROGACY LAW OHIO
Ohio case law, J.F. v. D.B., 879 N.E.2d 740 (2007), permits gestational surrogacy; and pre-birth parentage orders can be obtained by any intended parent in most circumstances, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither intended parent is genetically related to the child. Results vary, however, by judge and county.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Ohio, 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 Ohio.
Is Gestational Surrogacy Legal in Ohio?
Yes. Ohio state law permits gestational surrogacy.
Is Traditional Surrogacy Legal in Ohio?
Yes. Traditional surrogacy is legal because there is no statute or case law that prohibits it. The enforceability of individual traditional surrogacy contracts varies by judge and circumstances.
Is Compensated Surrogacy Legal in Ohio?
Yes. Compensated surrogacy legal in Ohio; 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 an Ohio Surrogacy Contract
Surrogacy contracts must be created by separate surrogate 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 Ohio
In most circumstances, pre-birth parentage orders can be obtained by any intended parent, regardless of sexual orientation, marital status, or the genetic relationship to the child. However, the results vary by judge and county.
In about half of Ohio’s 88 counties, pre-birth orders are granted and in the other half, post-birth orders are granted.
Same-Sex Surrogacy in Ohio
Q: Is Same-Sex Surrogacy Legal in Ohio?
A: Yes. There is no statute or case law that prohibits same-sex surrogacy. 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 Ohio?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Ohio?
A: This is unclear since Ohio 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.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Ohio?
A: No. International intended parents are subject to the same Ohio 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.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: When intended parents have a properly executed gestational surrogacy agreement, no adoption should be necessary. In most cases, pre-birth parentage orders can be obtained by any intended parent, whether married or unmarried, a heterosexual or same-sex couple or individual, and even if neither intended parent is genetically related to the child. Results vary, however, by judge and county.
Q: Does Ohio 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 permitted in Ohio so unmarried intended parents will be required to pursue a second-parent adoption outside the state in order to secure his or her legal parental rights.
Stepparent adoptions are available to married couples.
Q: If Intended Parents Cannot Complete a Second-Parent Adoption, How Can Unmarried Non-Biological Intended Parents Protect Their Parental Rights?
A: One unmarried non-biological parent should establish parentage through the gestational surrogacy agreement. The non-biological intended parent who does not establish parentage through the gestational surrogacy agreement will need to enter into a co-custody agreement with the intended parent who is able to establish parentage through the gestational surrogacy agreement. This will not result in a birth certificate that includes the names of both intended parents.
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 an Ohio surrogacy, even if they use a donor egg, sperm, or embryo. However, this varies by county and judge.
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