Surrogacy Law in North Carolina

In North Carolina, as in many states, the law is trying to keep up with changing technology and culture. This is not just true in so far as computers and cell phone usage is concerned, but also in health and medical fields. For instance, the law in North Carolina has recently recognized a changing world in recent passage of laws concerning: smoking in public places, driving while texting, and video conferencing over the Internet as a supplement to traditional child visitation. Another area of recent fluctuation in the laws of North Carolina is in the area surrogacy.

Surrogacy is the term used to describe the pregnancy of a woman for the benefit of another—usually a contracting couple. There are several types of surrogacy arrangements, such as: “straight” surrogacy when the surrogate is carrying to term her biological child which was conceived precisely for the purpose of providing a child to a contracting couple; “gestational” surrogacy involves the surrogate mother becoming pregnant by transferring a fertilized embryo into the surrogate mother to act as the host of the embryo baby until birth.

Either form of surrogacy, straight or gestational, may be either altruistic or commercial in nature. In altruistic surrogacy, the surrogate receives no compensation for carrying the child to term except as to medical and other pregnancy related expenses. In commercial surrogacy, where allowed, the surrogate receives compensation above and beyond the medical expenses, said compensation can range from $10,000 to around $55,000, not including the cost of fertilization procedures and other medical expenses.

Surrogacy is a viable option for those wishing to produce a child who do not have the means by which to do so, including infertile couples, homosexual and lesbian couples, and single persons wishing to have a child.

North Carolina does not presently have any law directly dealing with surrogacy. However, contract law and adoption laws in North Carolina appear to allow surrogacy albeit in strained terms.

North Carolina has recognized artificial insemination in N.C. Gen. Stat. § 49A-1 which states: “Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.”

However, nowhere in N.C. Gen. Stat. § 49A-1 is surrogacy mentioned.

Under North Carolina law, a delivering mother is presumed to be the mother of the child she delivers. The husband of the delivering mother is presumed to be the father of the child. Thus, if a woman agrees to be the surrogate mother for a contracting couple, then, upon birth of the child, the surrogate is considered the mother and her husband is presumed to be the father despite the fact that neither one may have contributed genetically to the child. This leaves the contracting couple (who may have both contributed to the genetic make-up of the child) forced to adopt their own biological child under North Carolina’s adoption statutes.

Adoption in this manner is allowed under North Carolina law so long as no compensation is paid to the surrogate—commercial surrogacy appears to not be allowed under North Carolina law where the adoptions statutes apply. It should be noted that the adoption procedures open the contracting party up to various pre-placement requirements enumerated in the adoption statutes including home studies by the Department of Social Services or another licensed agency.

In March 2009, the legislature of North Carolina began working on House Bill 510 and Senate Bill 440. If the proposed law passes, gestational surrogacy agreements would be officially recognized by North Carolina. As it stands, contract law generally allows parties to the contract to agree to almost any endeavor so long as the purpose of the contract is not immoral or illegal and does not violate public policy. It has not been established whether or not North Carolina would consider a surrogacy agreement immoral or in violation of public policy and as such surrogacy agreement are of questionable enforceability at the present.

Commercial surrogacy will become validated if the North Carolina Legislature passes House Bill 510 (SB 440) as presently written. The proposed law states that: “The consideration, if any, paid to a gestational carrier shall be reasonable and negotiated in good faith between the parties. Compensation may not be conditioned upon the health or characteristics of any fetus, embryo, or child produced as the result of assisted reproduction.”

In conclusion, at the present only altruistic surrogacy appears to be achievable in North Carolina through North Carolina’s adoption statutes but little protections are available to the contracting party/intended parent due to present questions surrounding the enforceability of surrogacy contracts and the legal presumptions presently in place regarding parentage. However, times-are-a-changin’ and North Carolina appears (if HB 510 and SB 440 are any indication) to be moving along the same progressive timeline as many other states and may soon make it easier to create surrogacy arrangements between intended parents and the gestational women, potentially even commercial surrogacy arrangements. It just takes a little time for the law to catch up to changes in the technology and culture.

Author’s Note: The above is presented as general information on surrogacy law in North Carolina. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read it the current status of surrogacy law in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.