Arizona is a family-friendly state with a court that upholds the “best interests of the child” as its highest priority, but when it comes to creating a non-traditional family through a gestational surrogate, the law makes attempts to create a family this way a significant legal risk. Arizona is one of only a small handful of states that essentially prohibits surrogacy by making surrogacy contracts unenforceable. If you live in Arizona and wish to create a family by using a gestational surrogate, it’s important to understand the law.
When prospective parents collaborate with a third person to carry their intended child to term the woman becomes a surrogate for the child through an embryo transfer. Typically, the surrogate mother receives compensation from the intended parents as well as paid medical care throughout the process.
There are two types of surrogacy processes. In gestational surrogacy, the intended mother’s egg, or an egg from a donor, undergoes a fertilization process using either the prospective father’s sperm or that of a donor. The resulting embryo is transferred to the surrogate who carries the pregnancy to term. In gestational surrogacy, the surrogate is not related to the baby, and they share no genetic material. In traditional surrogacy, the surrogate uses her own egg which is then artificially inseminated by either the intended father’s sperm or that of a donor. In traditional surrogacy, the surrogate is the biological mother of the child.
Gestational surrogacy is more common than traditional surrogacy because the surrogate is not biologically related to the child, presumably creating less of a bond or making the transition easier on the birth mother.
In most states, a signed legal contract ensures that the surrogate turns the child over to the intended parents after birth. A pre-birth or post-birth parentage order makes a legal adoption unnecessary by requiring the hospital to put the intended parents’ names on the birth certificate. The surrogate gives up all legal rights to the child. However, this type of contract is prohibited by law in Arizona.
Law enforcement officers are not going to arrest any prospective parents or their gestational surrogates in Arizona. The process of a surrogacy arrangement itself isn’t illegal; however, Arizona law 25-218 states:
“No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.”
Because creating a surrogacy contract, whether paid or unpaid, is prohibited by Arizona law, law enforcement agencies and the Arizona Justice Department will not enforce any surrogacy contract created between intended parents and their surrogates. In Arizona, the gestational surrogate is the child’s legal mother. If the surrogate is married, her husband is the infant’s presumptive father. These legal presumptions are rebuttable in court, but it’s a complex legal process with no guarantees of success if the surrogate refuses to give up parental rights to the child.
A surrogacy arrangement in Arizona is still possible, but the birth mother and presumptive father must legally give up their parental rights. Then an adoption process takes place for the intended parents to become the child’s legal parents. However, this process presents a substantial risk without an enforceable contract since the prospective parents have no legal rights to the baby. There are also risks for the gestational surrogate. Since surrogacy contracts are unenforceable in Arizona, there have been cases in which the intended parents refuse to adopt the child or fail to compensate the surrogate.
Some attorneys in Arizona create legal agreements between parents and surrogates with the caveat that the language of the agreement may not be enforceable in a dispute between the parties. The results of these cases vary, depending on the county and the judge. Often, prospective parents go to other states to find their surrogate and create the contract in the other state where the agreement is enforceable. It’s critical to consult with a Chandler family lawyer about your options if you are interested in becoming a parent through surrogacy or serving as a surrogate to prospective parents.
