Gestational Surrogacy in Nebraska

Nebraska statute R.R.S. Neb. 25-21, 200 makes compensated surrogacy contracts void and unenforceable. The statute defines a “surrogate parenthood contract” to include circumstances when a “woman is to be compensated for bearing a child of a man who is not her husband.” Even while Nebraska’s statute makes compensated surrogacy contracts unenforceable, it does not declare them illegal. To the contrary, the same statute provides that “the biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child.”

In 2020, the legislature increased access to gestational surrogacy when it enacted R.R.S. Neb. 71-604.02, which addresses situations when the biological mother is different from the woman who gives birth – i.e., gestational surrogacy (without using the term!). In this “Acknowledgement of Maternity” statute, the Nebraska legislature allows an intended mother to be established as the legal mother, so long as the intended mother is genetically related to the child and the woman giving birth acknowledges her as the biological parent. The statute allows the intended parents to be named on the birth certificate when a gestational surrogate gives birth and specific circumstances are met.

Today, Nebraska courts grant adoption orders to both same-sex and heterosexual married couples who use their own or donor gametes, and whose pregnancy was carried by a compensated (or uncompensated) gestational surrogate. The parties need to understand, however, that there is no way to enforce the specific provisions in a surrogacy agreement in Nebraska if the gestational carrier is compensated. A Nebraska surrogate who is reimbursed for expenses, e.g., unpaid medical bills, lost wages, etc., is not considered to be receiving “compensation,” and so such expenses may be reimbursed even in an uncompensated surrogacy arrangement.

 

Become a surrogate Become a parent

Post-Birth Adoption Orders

Do courts grant pre-birth parentage orders? No, there are no pre-birth (or post-birth) parentage orders in Nebraska. The courts do grant post-birth adoption orders to parents using a gestational surrogate in Nebraska, even when the gestational surrogate receives compensation, but only if the intended parents are a married couple. If a sperm donor is used, the non-genetic intended father can still be named as a legal parent, but a two-step process is required for the non-genetic intended parent to be named on the birth certificate: First, the couple must obtain a stepparent adoption for the non-genetic parent. For Intended Parents who do not reside in Nebraska, this must be done in their home state. Once Nebraska Vital Records receives the stepparent adoption order, whether in-state or out-of-state, it will amend the birth certificate to name both parents.

Can both Intended Parents be declared the legal parents in a post-birth adoption order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes. They can be established as parents on the birth certificate by Affidavit post-birth without the need for a post-birth adoption order.
  • Married heterosexual couple using an egg donor or sperm donor: No, the court grants a post-birth adoption order only to the genetic parent, requiring a 2-step process to obtain recognition of the non-genetic parent.
  • Unmarried heterosexual couple using own egg and own sperm: No, Nebraska requires couples to be married.
  • Unmarried heterosexual couple using an egg donor or sperm donor: Same as above.
  • Married same-sex couple using an egg donor or sperm donor: No, the court grants a post-birth adoption only for the genetic parent, requiring a 2-step process to obtain recognition of the non-genetic parent.
  • Unmarried same-sex couple using an egg donor or sperm donor: No, Nebraska requires couples to be married.
  • Single parent using own egg/sperm: No

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

  • Married heterosexual couple: No
  • Unmarried heterosexual couple: No
  • Same-sex couple: No
  • Single parent: No

Is a hearing required to obtain a post-birth adoption order? Yes

Will Nebraska Vital Records honor a pre-birth order from another state? No, not even with domestication.

Same-Sex Couple

How are same-sex parents named on the final birth certificate? After the 2-step process, the parents are named as Parent and Parent.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? No, there is no post-birth parentage order in Nebraska. There is only a post-birth adoption order.

Can they subsequently obtain a birth certificate naming only the biological father and/or both fathers, with no mention of the Gestational Carrier? After the 2-step process is complete, they can subsequently get a birth certificate naming both fathers or both mothers, or the genetic father and the mother.

Can the non-biological parent obtain a second parent adoption based solely on the fact that the child was born in Nebraska (i.e., neither of the Intended Parents lives in Nebraska)? No

If no, will Nebraska Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? No

Second Parent & Stepparent Adoptions for Nebraska Residents

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

Will courts in Nebraska grant second parent or stepparent adoptions to heterosexual and same-sex couples living in Nebraska? Yes

Do they have to be married? Yes

Egg & 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? No

Traditional Surrogacy in Nebraska

The statute does not distinguish Traditional Surrogacy from Gestational Surrogacy.

State Law Information Provided By The Following Attorneys Practicing Reproductive Law In This State:

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