State By State Surrogacy Legal Matrix for Florida, New York, New Jersey, California, and Illinois

Illinois

Is Surrogacy Legal? Yes, pursuant to Illinois Gestational Surrogacy Act (750 ILCS 47/5)Sec. 5) and the Illinois Parentage Act of 2015 (750 ILCS 46/ Illinois Parentage Act of 2015)

Any legal requirement of surrogate?

• be at least 21 years of age

• have given birth to at least one child

• complete a medical evaluation

• complete a mental health evaluation

• undergo a legal consultation with independent legal counsel

• obtained (or the intended parent(s) have obtained on her behalf), health insurance in accordance with the requirements of the Act.

Any legal requirement of intended parent(s)?

• at least one member of the intended parent(s) must have genetic connection to the embryo (i.e. the egg or sperm of at least one of the intended parents)

• demonstrate a medical need for surrogacy as evidenced by a qualified physician’s affidavit

• complete a mental health evaluation

• undergo legal consultation with independent legal counsel

Single intended parent permitted? Yes.

Unmarried intended parents permitted? Yes.

LGBTQIA+ intended parents permitted? Yes.

International intended parents permitted? Yes.

Medical necessity? Yes.

Donor egg permitted? Yes (but requires intended parent sperm)

Donor sperm permitted? Yes (but requires intended parent egg)

Donated Embryo permitted?  No.

Estate Planning Required? Not by law but best practice

Escrow Required? Yes, if surrogacy agreement provides for payment of compensation

Pre- or post birth parentage proceeding? Administrative process (not a court proceeding) handled prior to the birth

New Jersey

Is Surrogacy Legal? Yes, pursuant to New Jersey Gestational Surrogacy Act (2018)

Any legal requirement of surrogate?

• at least 21 years of age

• has given birth to at least one child

• completed a medical evaluation

• completed a psychological

• retained an attorney, independent of the intended parent(s), but for whose services the intended parent may pay, who has consulted with her about the terms of the gestational carrier agreement per New Jersey law

Any legal requirement of intended parent(s)?

• An intended parent can be persons who are single, married, partners in a civil union or domestic partnership, and couples who are not married or in a civil union or domestic partnership.  

• Intended parent(s) must be represented by an attorney who consulted with the intended parent about the terms of the gestational surrogacy agreement per New Jersey law

Single intended parent permitted? Yes.

Unmarried intended parents permitted? Yes.

LGBTQIA+ intended parents permitted? Yes.

International intended parents permitted? Yes.

Medical necessity? No

Donor egg permitted? Yes

Donor sperm permitted? Yes

Donated Embryo permitted?  Yes

Estate Planning Required? Not by law but best practice

Escrow Required? Not by law but best practice

Pre- or post birth parentage proceeding? Pre-birth parentage court proceeding

Florida

Is Surrogacy Legal? Yes, pursuant to Florida Statutes 742.15 (married intended parents using at least one member’s genetic material) or Florida Statutes 63.213 (single intended parents, unmarried intended parents, or intended parents using donated embryos).

Any legal requirement of surrogate?

• at least 18 years of age

Any legal requirement of intended parent(s)?

• at least 18 years of age

Single intended parent permitted? Yes.

Unmarried intended parents permitted? Yes.

LGBTQIA+ intended parents permitted? Yes.

International intended parents permitted? Yes.

Medical necessity? Yes

Donor egg permitted? Yes

Donor sperm permitted? Yes

Donated Embryo permitted?  Yes

Estate Planning Required? Not by law but best practice

Escrow Required? Not by law but best practice

Pre- or post birth parentage proceeding? Post-birth parentage court proceeding (pre-birth order also recommended)

New York

Is Surrogacy Legal? Yes, pursuant to the New York Child-Parent Security Act (CPSA)

Any legal requirement of surrogate?

• at least 21 years of age

• is a United States citizen or a lawful permanent resident

• has been a resident of New York for at least six months if neither intended parent has been a resident of New York state for at least six months

• is not genetically related to the child

• completed medical evaluation

• given informed consent to the medical procedures after understanding the risks

• represented by independent New York licensed attorney from the initiation of the contractual process and throughout the duration of the surrogacy agreement, typically paid for by the intended parent(s) unless payment for legal fees is waived pursuant to New York law

• stipulates the surrogate will obtain comprehensive health insurance coverage per the requirements of New York law

Any legal requirement of intended parent(s)?

• at least one intended parent is a United States citizen or a lawful permanent resident; and has been a resident of New York for at least six months if the surrogate has not been a resident of New York for at least six months

• represented from the initiation of the contractual process and throughout the duration of the surrogacy agreement by independent New York licensed legal counsel

• they are an adult person who is not in a spousal relationship, or any adults who are spouses together, or any adults who are intimate partners together, with some exceptions under New York law for spouses living apart that do not need to join the surrogacy contract

Single intended parent permitted? Yes.

Unmarried intended parents permitted? Yes.

LGBTQIA+ intended parents permitted? Yes.

International intended parents permitted? Limited. At least one intended parent is a United States citizen or lawful permanent United States resident

Medical necessity? No.

Donor egg permitted? Yes

Donor sperm permitted? Yes

Donated Embryo permitted?  Yes

Estate Planning Required? Yes.

Escrow Required? Yes, if surrogacy agreement provides for payment of compensation. New York law has certain requirements regarding how long funds must remain in escrow and language required in the surrogacy agreement regarding the amount that intended parent(s) shall place in the escrow account.

Unique to New York: New York surrogacy law has detailed requirements of what must be included in a surrogacy agreement. Some notable provisions that are more unique to New York include some of the following requirements:

• surrogate and her spouse (if applicable) acknowledge they were provided with a New York Gestational Surrogates’ Bill of Rights

• surrogate’s health insurance must be in place throughout the duration of the pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of the pregnancy, or termination of the pregnancy. The intended parent(s) shall also pay for or reimburse the surrogate for all co-payments, deductibles and any other out-of-pocket medical costs associated with pregnancy, childbirth, or postnatal care for same period of time as insurance remains in place

• intended parent(s) shall pay for a life insurance, contractual liability, or accidental death insurance policy for the surrogate pursuant to the requirements of New York law. New York law also addresses other insurances such as disability insurance or lost wages polices upon the surrogate’s request

• surrogate can request mental health counseling paid for by the intended parent(s), including following the delivery

• statement required in agreement that payments to the surrogate may impact the surrogate or her spouse’s public benefits or the amount of such benefits

• New York surrogacy law addresses specific language regarding dispute resolution and provides, amounts other requirements regarding resolving disputes, that specific performance (i.e. legally forcing a person to perform a certain action), shall not be a remedy available for a breach by a surrogate to be impregnated, agreement to multiple embryo transfer, terminate or not terminate a  pregnancy,  or submit to medical procedures including a cesarean section

Pre- or post birth parentage proceeding? Pre-birth parentage court proceeding

California

Is Surrogacy Legal? Yes, pursuant to AB 1217, codified as C.A. Fam. Code § 7960 et seq.

Any legal requirement of surrogate?

• must be represented by separate independent licensed attorney of her choosing

Any legal requirement of intended parent(s)?

• must be represented by separate independent licensed attorney of Intended Parent(s)’s choosing

• an intended parent in California means an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction

Single intended parent permitted? Yes.

Unmarried intended parents permitted? Yes.

LGBTQIA+ intended parents permitted? Yes.

International intended parents permitted? Yes.

Medical necessity? No

Donor egg permitted? Yes

Donor sperm permitted? Yes

Donated Embryo permitted?  Yes

Estate Planning Required? Not by law but best practice

Escrow Required? Yes

Pre- or post-birth parentage proceeding? Pre-birth parentage court proceeding can take place in (1) the county where the child is anticipated to be born, (2) the county where the intended parent(s) reside, (3) the county where the surrogates resides, (4) the county where the surrogacy agreement is executed, or (5) the county where the embryo transfer occurred.

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