Surrogacy Laws by State: 2026 Guide — Part 2: Key Factors and Interstate Surrogacy

This is Part 2 of our surrogacy laws guide. Part 1 covers the key legal concepts and the three categories of states. This part covers the factors that vary by state, interstate surrogacy, and international considerations.

Key Factors That Vary by State

Who Can Be Listed on the Birth Certificate

In surrogacy-friendly states, both intended parents (regardless of gender or marital status) can be listed on the original birth certificate via a PBO.

In other states:

• Only the genetically-related intended parent may be listed initially
• The non-genetic parent may need to complete a stepparent adoption or obtain a separate court order
• Same-sex couples may face additional hurdles in some jurisdictions, despite the Supreme Court's marriage equality ruling

Married vs. Unmarried Intended Parents

Some states' surrogacy statutes apply only to married couples. Unmarried couples or single intended parents may need to follow a different legal process (such as a parentage action rather than a surrogacy-specific statute).

Genetic Connection Requirements

Some states require that at least one intended parent be genetically related to the baby for a PBO. If you're using both donor egg and donor sperm, this can affect which states' processes are available to you.

Residency Requirements

A few states require that the intended parents and/or the gestational carrier be residents. This affects interstate surrogacy arrangements, which are very common.

Interstate Surrogacy

Many surrogacy journeys involve parties in different states — you might live in New York, your gestational carrier might live in Ohio, and the baby might be born in a hospital in a third state.

The state that matters most is usually where the baby is born. That's the state whose courts will issue the parentage order and whose vital records office will issue the birth certificate.

Key considerations:

• Your attorney should be licensed in the state where the baby will be born
• If your carrier might deliver in a different state than planned (near a state border, or in an emergency), discuss backup plans with your attorney
• Some attorneys maintain a network of co-counsel in other states for exactly this scenario

International Intended Parents

If you live outside the United States and are pursuing surrogacy with a US-based carrier:

• US surrogacy law applies to the birth (since the baby is born on US soil)
• You'll need to establish legal parentage in the US via the standard process
• You'll then need to register the birth with your home country's embassy or consulate
• Citizenship for the baby depends on your country's laws — some countries grant citizenship automatically to children of citizens born abroad, others don't
• You'll need a US passport or a travel document from your embassy to leave the US with the baby
• Plan for a 2–4 week stay in the US after the birth to complete legal and administrative requirements

Countries with specific considerations:

• UK: The intended parents must apply for a Parental Order within 6 months of birth. UK law recognizes the birth mother (carrier) as the legal mother until a Parental Order is granted.
• Australia: Several states have laws restricting or prohibiting commercial surrogacy arrangements abroad. Seek legal advice in your home state before proceeding.
• Canada: Commercial surrogacy is prohibited in Canada, but Canadian citizens can pursue it in the US. The parentage process involves Canadian immigration and citizenship applications.

What to Do with This Information

1. Don't choose a state based on law alone. The best state for your journey depends on where qualified carriers are available, where your clinic is, and where your agency operates — in addition to the legal landscape.

2. Hire a reproductive law attorney early. Before you match with a carrier, before you sign with an agency. An attorney can advise you on the legal implications of your specific situation — your family structure, your state, your carrier's state.

3. Don't assume you know the law. Even surrogacy-friendly states have nuances. A single intended parent's process may differ from a married couple's. A same-sex couple using donor gametes may have different requirements than a heterosexual couple using their own.

4. Laws change. This guide reflects information available as of early 2026. States regularly introduce new legislation, and court decisions can shift the landscape. Your attorney is your source of truth.

The Bottom Line

Surrogacy law is complex but navigable. Thousands of families successfully complete surrogacy journeys every year across the United States. The key is working with experienced professionals who know the legal landscape in your specific situation.

The patchwork of state laws is frustrating — but it's also why the right legal counsel is so valuable. A good reproductive law attorney doesn't just handle paperwork — they protect your family.

---

Previous: Part 1 — The Legal Landscape

Related reading:

• The Complete Post-Birth Admin Guide for Surrogacy Parents
• How to Choose a Surrogacy Agency: 15 Questions to Ask
• Surrogacy Cost Breakdown 2026