Arizona surrogacy contracts are prohibited by statute. Arizona Revised Statute § 25-218 states that no person may enter into or assist in creating a surrogacy contract.
Although the contracts are unenforceable, Gestational Surrogacy continues to be practiced in Arizona. After a 1994 Arizona court decision ruled that Intended Parents can rebut the statutory presumption that the Gestational Carrier is the legal mother of a child, Soos v. Superior Court (1994), Intended Parents began to petition Arizona courts for pre-birth orders. Courts now grant such pre-birth orders, but the surrogacy contracts remain unenforceable. Consequently, some attorneys will not prepare surrogacy agreements, while others prepare letters of understanding or agreements that include exculpatory language about their unenforceability.
Do courts grant pre-birth parentage orders? Yes, some will, but many courts are now waiting until after the birth of the child before entering a maternity order. There may also be a hearing requested before the order is granted. The intended father can be listed on the birth certificate through the use of a paternity affidavit (and denial of paternity affidavit by the Carrier’s husband if married) at the hospital and ordering that their names be place on the child’s birth certificate.
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?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
What are the bases for venue? County of any party to the case, or the county where child is born.
Do results vary by venue? Yes, and can also vary by judge
If yes, are motions to waive venue accepted? Yes. So long as there is proper jurisdiction in Arizona, venue is not typically an issue unless someone objects.
Is a hearing required to obtain a pre-birth order? Varies by judge
Is a pre-birth order possible in Arizona based on a Gestational Carrier’s plan to deliver in Arizona, if no party lives in Arizona? Yes, Arizona Statute § 25-802, regarding venue, anticipates such a possibility.
Will Arizona Vital Records honor a pre-birth order from another state? Yes
What is the typical time frame to obtain a birth certificate after delivery? 7-10 days if walked through, or within 3 weeks if by mail.
How are same-sex parents named on the final birth certificate? Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes, but only the biological father is named initially. The non-biological father can be added to the birth certificate only after a second-parent adoption elsewhere. Arizona will then amend and reissue the birth certificate with the second father.
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Arizona (i.e., neither of the Intended Parents lives in Arizona)? No
If no, will Arizona Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes
Note: This situation typically arises if the child is born outside the state. The parents then return to Arizona to obtain a second parent adoption or stepparent adoption in Arizona.
Will courts in Arizona grant second parent or stepparent adoptions to heterosexual couples living in Arizona? Yes
Does the couple need to be married? Yes
Will courts in Arizona grant second parent or stepparent adoptions to same-sex couples living in Arizona? Yes, because of marriage equality. Theoretically no, because Arizona’s adoption statute limits adoptions to a “husband and wife” or to an “individual.”
Does the couple need to be married? Yes.
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? No
The Arizona statute that prohibits Gestational Surrogacy contracts also prohibits Traditional Surrogacy contracts.
Dan Ziskin
Phoenix, AZ
dan@adoptz.com
(602) 234-2280
Scott E. Myers
Tucson, AZ
scott@myersstrickland.com
www.arizonaadoptionlaw.com
(520) 327-6041
Rita Meiser
Phoenix, AZ
rmeiser@meiserlaw.com
www.meiserlaw.com
(602) 650-2473
Heather Strickland
Tucson, AZ 85716
heather@myersstrickland.com
(520) 327-6041
Tsong Law Group A Professional Corporation
Cerritos, California
ralph@tsonglaw.com
www.tsonglaw.com
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