New Hampshire’s Revised Surrogacy Law Eliminates Discrimination Against LGBTQ Community

As the co-author of the bill that revamped New Hampshire’s surrogacy law, I am thrilled to let you know that my state’s statutes no longer contain discriminatory provisions that made surrogacy inaccessible for many people, including gay couples. The revised law permits gestational surrogacy arrangements for all intended parents, with no discrimination based upon marital status or sexual orientation. Furthermore, the law specifically allows surrogacy using donated eggs (as well as donated sperm and donated embryos). The law no longer contains burdensome requirements that added extra costs, delay and hassle to an already expensive and lengthy process. These legislative changes reflect the modern view on the regulation of surrogacy for the protection of all participants, and have created an environment in New Hampshire that is favorable for family building by LGBTQ intended parents.

The law also sets certain minimum requirements for surrogacy arrangements, in conformance with the best practices standards currently in place at most IVF clinics and surrogacy agencies. Reasonable compensation to the surrogate is permitted, and the compensation schedule must be written into the surrogacy contract. The contract needs to be in place before the embryo transfer procedure, and such contracts are presumed valid and enforceable. Provided all of the law’s specific requirements are met, the participants are eligible for an expedited pre-birth order (“PBO”) that is issued without any hearing. This means that the names of only the intended parents are placed upon the child’s birth certificate through a simplified process.

For members of the LGBTQ community, New Hampshire provides one of the most favorable legal climates for gestational surrogacy. For example, gay male couples who are relying upon help from an egg donor as well as a surrogate will find protections in New Hampshire’s laws. When such intended parents choose to use two embryos, created from sperm from each of them, they will be able to obtain birth certificates containing both of their names without having to undergo paternity testing after the birth to identify their biological connections to the child(ren).

The new law only governs gestational surrogacy. Traditional surrogacy (where the surrogate’s own egg is used) is governed by a different, and more restrictive, legal framework and also remains an option for LGBTQ prospective parents.

OLYMPUS DIGITAL CAMERACatherine Tucker is a solo practitioner in Concord, New Hampshire with a practice focused on assisted reproduction law and LGBTQ legal issues. She serves on the Board of Directors for RESOLVE New England and on the Executive Council of the American Bar Association’s Assisted Reproductive Technologies Committee, and is also a member of the National LGBT Bar Association. Catherine is admitted to practice in New Hampshire and Massachusetts. Catherine blogs about surrogacy and related topics at the Assisted Reproduction Law Blog.