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GESTATIONAL SURROGACY IN NORTH DAKOTA

Gestational Surrogacy is permitted by statute N.D. Cent. Code §§14-18, which states clearly and simply that a child born to a gestational carrier is the child of the intended parents for all purposes.

Note: Section 14-02.1-02 of the North Dakota Century Code bans abortion for sex selection or for a genetic defect.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes
 
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
 

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: For an Intended Mother, yes.  For an Intended Father, possibly. 


Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
 

  • Married heterosexual couple: Unclear
  • Unmarried heterosexual couple: Unclear
  • Same-sex couple: Unclear
  • Single parent: Unclear 


Is a hearing required to obtain a parentage order?  Not generally 
 
Do results vary by county?  Yes 
 
Will North Dakota Vital Records honor a pre-birth order from another state?
  Yes

Same-Sex Couples

How are same-sex parents named on the final birth certificate? They are listed as the parents.
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? 
Yes, but it is risky. It is much preferred to list the intended parents on the birth certificate from the start.
 
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?
See above.

SECOND PARENT & STEPPARENT ADOPTIONS FOR NORTH DAKOTA RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to North Dakota to obtain a second parent adoption or stepparent adoption in North Dakota.

Will courts in North Dakota grant second parent adoptions or stepparent adoptions to heterosexual couples living in North Dakota?  Yes
Does the couple need to be married?  
No
 
Will courts in North Dakota grant second parent adoptions or stepparent adoptions to same-sex couples living in North Dakota?  
Yes, for second parent adoptions, but a home study is required. It is not clear for stepparent adoptions because ND still does not recognize same sex marriages by statute. However, it appears that marriages are being recognized by virtue of a federal court decision.
Does the couple need to be married?   
No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, North Dakota statute N.D. Cent. Code §14-20-60 is clear and gender-neutral, “A donor is not a parent of a child conceived by means of assisted reproduction.”

TRADITIONAL SURROGACY IN NORTH DAKOTA

Traditional Surrogacy is not permitted in North Dakota. Traditional Surrogacy contracts have been declared void and unenforceable by N.D. Cent. Code §14-18-05.

State law information provided by the following attorneys practicing Reproductive Law in this state:


William Harrie
wharrie@nilleslaw.com
(701) 237-5544

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