Key Takeaways
- Nearly every state now permits gestational surrogacy in some form, and Michigan ended its long-standing ban when its new surrogacy law took effect in 2025.
- When the intended parents and the surrogate live in different states, getting the right names on the birth certificate can require extra court proceedings.
- Modern surrogacy laws such as Connecticut's leave health care decisions during the pregnancy, including termination, with the person carrying the pregnancy.
If someone else carries and delivers your child, who are the child's legal parents, and who gets the final word on decisions during the pregnancy?
In this TalksOnLaw Brief, Joel Cohen talks with Douglas NeJaime, Anne Urowsky Professor of Law at Yale Law School and principal drafter of the Connecticut Parentage Act, about the legal structures and risks that families and surrogates face, from the first agreement through birth and beyond.
A Patchwork of State Laws
Professor NeJaime explains that surrogacy is expensive and typically involves health care providers and attorneys, and most legal frameworks assume they are involved. States have taken different paths. Some have not legislated, leaving courts to work through disputes; others, increasingly including Connecticut, New York, California, and Washington, explicitly allow and regulate surrogacy. In those states, the intended parents are treated as the child's parents, and their attorneys obtain a judgment of parentage that often instructs vital records officials to list the intended parents on the birth certificate.
Problems arise across state lines. He describes intended parents in California with a surrogate in Tennessee: California may issue a parentage judgment, but if the child is born in Tennessee, that state issues the birth certificate and may refuse to list the intended parents. In his view Tennessee should honor the California judgment, but that does not always happen, and the family may face adoption and termination proceedings. If the surrogate is married and the state does not recognize the arrangement, her husband may be presumed the parent.
The Surrogate's Rights During Pregnancy
The newest laws, he notes, protect the surrogate's authority over her own body: to decline a C-section that is not medically indicated, to choose her health care providers, and to make decisions about termination. Under laws like Connecticut's, a clause requiring termination is unenforceable as against public policy. He advises intended parents and surrogates to make sure they are aligned at the outset, including on termination.
Gestational and Genetic Surrogacy
Upwards of 95 percent of U.S. surrogacies, he estimates, are gestational, meaning the surrogate is not genetically related to the child. Most states regulate gestational surrogacy but not genetic surrogacy, so a genetic surrogate in most states can change her mind at birth, leaving a non-genetic intended parent without legal status. Connecticut allows genetic surrogacy with advance court validation of the agreement, and it requires independent counsel for both sides.
What to Know Now
The trend Professor NeJaime describes toward regulated, intent-based surrogacy has continued. Michigan's Assisted Reproduction and Surrogacy Parentage Act took effect in April 2025, repealing the state's ban on compensated surrogacy and recognizing intended parents, with requirements such as independent counsel. New York's Child-Parent Security Act, passed in 2020, took effect in February 2021. Weeks after this video was published, the Supreme Court decided Dobbs v. Jackson Women's Health Organization, returning abortion regulation to the states, so where a surrogate lives and gives birth can now affect how termination provisions work in practice. Supporters of regulation say clear statutes protect children, parents, and surrogates alike, while critics continue to raise concerns about commercialization and the surrogate's welfare. Interstate recognition of parentage judgments remains a practical risk, which is why experienced counsel in each state involved is essential.
