GESTATIONAL SURROGACY IN NEBRASKA

Nebraska statute R.R.S. Neb. 25-21, 200 (2007) governs compensated surrogacy contracts: “A surrogate parenthood contract entered into shall be void and unenforceable. 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.”

Even while Nebraska’s statute makes compensated surrogacy contracts unenforceable, therefore, it declares that the biological father is the sole legal parent. The net result is that Nebraska courts only permit uncompensated surrogacy in Nebraska, and the underlying contract is void and unenforceable.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders? No, there are no pre-birth orders in Nebraska. The courts will grant post-birth orders, but only when the GC does not receive compensation. Also, only the biological father can obtain a post-birth order, requiring a 2-step process: The Gestational Carrier is initially named on the birth certificate with the biological father. The couple must then return to their home state to obtain a stepparent adoption for the Intended Mother. Nebraska will then amend the birth certificate.

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

• Married heterosexual couple using own egg and own sperm: No, only the biological father can obtain a post-birth order, requiring the 2-step process described above, and not for compensated surrogacy.
• Married heterosexual couple using an egg donor or sperm donor: Same as above
• 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.
• Same-sex couple using an egg donor or sperm donor: No, not for compensated surrogacy. If it is not compensated, then one of the parents can adopt; they can choose which one. For the adoption proceeding to be finalized in Nebraska, the adopting parent must be a Nebraska resident.
• Single parent using own egg/sperm: No

Can both Intended Parents be declared the legal parents in a post-birth 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 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? Only one parent is listed.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes, post-birth only and if there is no compensation to the Gestational Carrier.

Can they subsequently obtain a birth certificate naming only the biological father and/or both fathers, with no mention of the Gestational Carrier? They can subsequently get a birth certificate naming the biological father, but not both fathers.

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 of 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 couples living in Nebraska?  Yes

Do they have to be married?  Yes

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

Susan Sapp
ssapp@clinewilliams.com
(402) 474-6900

Kelly N. Tollefsen
kelly@kellytollefsenlaw.com
(402) 802-7514

Other Attorneys practicing Reproductive Law in this state:

Emilee Gehling, Gehling Osborn Law Firm, PLC
Sioux City, IA
Emilee@golawfirm.com
(712) 226-4600

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