GESTATIONAL SURROGACY LAW OKLAHOMA
The Oklahoma Gestational Agreement Act (House Bill 2468), which became effective May 15, 2019, legalized gestational surrogacy. This Act provides for enforceable gestational carrier agreements and pre-birth orders under certain conditions.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Oklahoma, 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 Oklahoma.
Is Gestational Surrogacy Legal in Oklahoma?
Yes. The Oklahoma Gestational Agreement Act (House Bill 2468), which became effective May 15, 2019, legalized gestational surrogacy.
Is Traditional Surrogacy Legal in Oklahoma?
Yes. Traditional surrogacy is permitted but only if it is an altruistic (not compensated) traditional surrogacy arrangement; traditional surrogacy is treated as an adoption in Oklahoma. Compensated traditional surrogacy arrangements are specifically prohibited and, although uncompensated traditional surrogacy is not specifically prohibited, it is still unprotected under the new legislation.
Is Compensated Surrogacy Legal in Oklahoma?
Yes. Compensated gestational surrogacy is legal in Oklahoma in gestational surrogacy; 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
However, a traditional surrogate cannot receive compensation because traditional surrogacy is treated as an adoption under Oklahoma laws.
Creating an Oklahoma Surrogacy Contract
In order to create an Oklahoma surrogacy agreement, intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure both parties’ interests and rights are protected.
The attorneys will negotiate a contract that addresses at least the following:
- Rights and responsibilities of each party
- Potential risks and complications for each party
- Surrogate compensation and other important financial information
- Contact expectations before, during and after the surrogacy
- Hospital plans for the surrogate’s delivery
- How the intended parents will establish their parental rights
- And more
Once this contract is finalized and signed, the medical process of surrogacy can begin.
Determining Legal Parentage in Oklahoma
Like in many other states, the availability of parentage orders in Oklahoma surrogacy often depends upon the overseeing judge. Most judges will issue post-birth orders in Oklahoma, although some will issue parentage orders before the child is born.
In most cases, pre-birth parentage orders may be obtained by a single intended parent or by a married couple, regardless of the intended parent’s genetic connection to the child, but the gestational carrier agreement must first be validated by the court prior to any embryo transfer.
In most cases, an Oklahoma surrogacy court will not issue parentage orders to couples or individuals who have no genetic ties to the child being born — unless they are a married, heterosexual couple receiving an embryo adoption (as specified by state laws). Instead, they will likely need to complete an adoption after birth.
Same-Sex Surrogacy in Oklahoma
Q: Is Same-Sex Surrogacy Legal in Oklahoma?
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.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Oklahoma?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Oklahoma?
A: Yes. A surrogacy contract will be binding and enforceable if it is in writing, signed by all parties, and notarized and the Gestational Carrier Agreement must be validated prior to transfer.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Oklahoma?
A: No. International intended parents are subject to the same Oklahoma 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: Intended parents will need to complete an adoption if they cannot obtain a parentage order. In Oklahoma, this is typically in cases where intended parents have no genetic relationship to their child born via surrogacy.
Q: Does Oklahoma 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 Oklahoma; unmarried intended parents will be required to pursue a second-parent adoption outside the state 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: Unmarried intended parents in Oklahoma will either need to get married to complete a stepparent adoption in Oklahoma, or complete a second-parent adoption in another state and update their Oklahoma birth certificate upon their return. These steps are usually only needed in cases where intended parents have no genetic relationship to their child born via surrogacy.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: As long as intended parents have at least one genetic relationship to their child born via surrogacy, using a donor egg, sperm, or embryo will not affect the availability of a post-birth parentage order. Married, heterosexual intended parents who use an embryo donation will also be protected from additional legal steps for establishing parentage. Okla. Stat. 10-555 states that an egg donor has no rights or obligations with respect to any child resulting from the donation and the child has no rights with respect to the donor. Okla. Stat.10-552 is similar but covers sperm donation. Okla. Stat. 10-556 covers embryo donation.
REPRODUCTIVE LAW PRACTITIONERS
Becki A. Murphy
Paul ("Trip) Swain
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