Maryland: A Friendly State for Surrogacy

Maryland is a great state for surrogacy. In Maryland, both gestational (a surrogate who is not biologically related to the child) and traditional surrogacy (a surrogate who agrees to be artificially inseminated with the intended father’s sperm and to carry the pregnancy to term), is possible for married, unmarried, and gay individuals.

There are no statutes or administrative regulations governing surrogacy arrangements in Maryland.  However, there have been two significant cases, both involving traditional surrogacy.

In both cases, the surrogate relinquished custody of the child when it was born and consented to the second-parent adoption by the intended mother.  In one of the cases, the court ruled that despite the fact that the second-parent adoption should be granted, surrogacy arrangements should be considered void and against public policy. In the second case, the court again ruled that the second-parent adoption should be granted and that surrogacy is not against public policy and does not violate Maryland law.  The judge in the latter case stated that the legislature should determine the legality of surrogacy agreements, not the courts.

The Maryland legislature tried to pass bills in 1992 and 1994 that would have made surrogacy agreements void against public policy.  However, the Governor vetoed these bills.  

In 2000, the Maryland Attorney General’s Office issued an opinion on surrogacy as well.  It’s a statement said that surrogacy agreements that pay fees to a birth mother are illegal and unenforceable. 

There has also been one appellate decision regarding surrogacy. In this case, the court ruled that if a single father is pursuing surrogacy, a surrogate mother, who has no genetic connection to the baby, does not have to be listed as the child’s mother on the birth certificate. The court also noted in this case that the payment of money for a child in a surrogacy agreement is illegal.

From the above cases and opinions, it can be deduced that it is important to have a surrogacy agreement that clearly states the intent of the parties, their rights, and responsibilities and that payments to the surrogate are not compensation for payment of a child.

In Maryland, intended parents can also get a pre-birth order, so that their names go directly on the birth certificate. In traditional surrogacy cases, the biological father’s name can go directly on the birth certificate. However, the biological father’s partner or wife would have to file for second-parent adoption in order to become the second legal parent.

Because Maryland is one of the friendlier surrogacy states, many couples wish to pursue surrogacy in Maryland.  However, in order to have Maryland laws apply, either the intended parents or the surrogate needs to reside in Maryland.

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