Family Law & Divorce Attorney
Arizona law treats surrogacy differently from many other states. While surrogacy itself is not prohibited, Arizona law does not recognize surrogate parentage contracts as enforceable. Because of this, intended parents often need additional legal steps to establish parental rights.
If you are considering surrogacy, understanding Arizona’s legal framework before beginning the process can help you make informed decisions and avoid unexpected complications later.
Are Surrogacy Agreements Enforceable in Arizona?
No. Arizona law prohibits surrogate parentage contracts.
Under Arizona Revised Statutes § 25-218, no person may enter into or assist in the formation of a surrogate parentage contract. As a result, surrogacy contracts are not enforceable in Arizona courts, regardless of how carefully they are drafted.
This does not mean surrogacy itself is illegal. Gestational surrogacy continues to occur in Arizona, but intended parents cannot rely on a contract alone to establish parental rights. Instead, parentage is typically determined through court procedures that apply Arizona law.
How Are Parental Rights Established?
Although Arizona prohibits surrogate parentage contracts, intended parents may still establish legal parentage through the courts.
One of the most important Arizona decisions in this area is Soos v. Superior Court (1994). The Arizona Court of Appeals held that part of Arizona’s surrogacy statute violated equal protection because it treated maternity and paternity differently. The statute created an irrebuttable presumption that the surrogate was the legal mother while allowing the presumption of paternity to be rebutted. Following that decision, Arizona courts developed procedures that may allow intended parents in appropriate gestational surrogacy cases to establish legal parentage through pre-birth or post-birth court orders.
What Is the Difference Between Traditional and Gestational Surrogacy?
Understanding the type of surrogacy involved can help explain why parentage issues arise.
Traditional surrogacy involves a surrogate who uses her own egg, making her genetically related to the child.
Gestational surrogacy involves an embryo created using the intended parents’ or donor genetic material. The gestational carrier has no genetic relationship to the child.
Although gestational surrogacy is more common today, Arizona’s statutory prohibition applies broadly to surrogate parentage contracts. Intended parents typically rely on court-established parentage rather than an enforceable agreement.
Is Paid Surrogacy Legal in Arizona?
Arizona does not provide a legally enforceable framework for compensated surrogacy.
Because Arizona prohibits surrogate parentage contracts, intended parents and surrogates cannot rely on an enforceable agreement governing compensation or parental rights. This differs from states that expressly authorize and regulate compensated surrogacy arrangements.
Even so, gestational surrogacy continues to take place in Arizona. Individuals considering this path should understand that parentage issues are addressed through legal proceedings rather than enforceable surrogacy contracts.
When Should You Speak With a Family Law Attorney?
It is best to seek legal guidance before beginning any surrogacy arrangement.
Early planning allows you to understand how Arizona law may affect your family’s circumstances, discuss options for establishing legal parentage, and prepare for any court proceedings that may be necessary after the child’s birth. We can also work with your fertility professionals and other advisors to help ensure each step of the process is handled appropriately.
Planning for Your Family’s Future
Surrogacy can offer a meaningful path to building a family, but Arizona law creates unique legal considerations that deserve careful attention. Understanding that surrogate parentage contracts are not enforceable, while also knowing how intended parents may establish legal parentage through the courts, can help you prepare for the process with realistic expectations.
If you are considering surrogacy or have questions about parental rights in Arizona, Cohen Family Law can explain how the law applies to your situation and help you understand the legal steps involved. Contact us today to schedule a consultation and discuss your options.
