GESTATIONAL SURROGACY IN NEW MEXICO
New Mexico has a statute whose sole purpose is to state that Gestational Surrogacy agreements are neither expressly permitted nor prohibited: N.M. Stat. Ann.§40-11A-801.
PRE-BIRTH PARENTAGE ORDERS
Do courts grant pre-birth parentage orders? Yes. Until recently, the initial birth certificate named the Gestational Carrier as the mother. With the cooperation of Vital Records, courts have started to name both Intended Parents on the initial birth certificate directly.
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, but it varies by judge.
- Unmarried heterosexual couple using an egg donor or sperm donor: Same as married heterosexual couples.
- Same-sex couple using an egg donor or sperm donor: Yes
- Single parent using own egg or sperm: Possibly, but this is unclear for single parents. The complication arises because a single parent will not have a second parent to take the place of the Gestational Carrier on the birth certificate, and New Mexico public policy does not favor relieving a parent of financial responsibility without replacing that parent.
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: Yes
- Unmarried heterosexual couple: Yes
- Same-sex couple: Yes
- Single parent: Possibly
Note that post-birth adoption is an option. However, adoption would require the Gestational Carrier to sign a relinquishment of parental rights before a judge after counseling has been completed or waived by the court.
What are the bases for venue? The county of the child’s birthplace, the county of Intended Parents’ residence, or the temporary location of child
Do results vary by venue? Historically yes, but with recent changes, it is expected that results will become consistent.
If yes, are motions to waive venue accepted? No, but it is possible to file a peremptory challenge of one judge, as well as to control venue by having the Intended Parents stay in a county of their choice with the child.
Is a hearing required to obtain a pre-birth order? No, the judge has the discretion to sign a stipulated order without a hearing. If a hearing is scheduled, the judge will determine whether the Intended Parents need to appear or whether their attorney can appear on their behalf.
Is a pre-birth order possible in New Mexico based on a Gestational Carrier’s plan to deliver in New Mexico, if no party lives in New Mexico? Yes, if the child is actually born in New Mexico.
Will New Mexico Vital Records honor a pre-birth order from another state? Yes, but it may be necessary to domesticate the order in New Mexico.
What is the typical time frame to obtain a birth certificate after delivery? Within 2 weeks, however, efforts can be made to expedite the process.
SAME SEX COUPLE
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.It is easier to name both fathers, because removing a parent without substituting a second parent is not specified in the statute and is problematic as a matter of policy in New Mexico.
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 New Mexico (i.e., neither of the Intended Parents lives in New Mexico)? Yes
If no, will New Mexico Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes, but domestication of the order may be required.
SECOND PARENT & STEPPARENT ADOPTIONS FOR NEW MEXICO RESIDENTS
Note: This situation typically arises if the child is born outside of the state. The parents then return to New Mexico to obtain a second parent adoption or stepparent adoption in New Mexico.
Will courts in New Mexico grant second parent adoptions or stepparent adoptions to heterosexual couples living in New Mexico? Yes
Does the couple need to be married? No
Will courts in New Mexico grant second parent adoptions or stepparent adoptions to same-sex couples living in New Mexico? Yes
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, NM Stat.§ 40-11A-702 states that donors of eggs, sperm or embryos are not the parents of children conceived by assisted reproduction.
TRADITIONAL SURROGACY IN NEW MEXICO
While Traditional Surrogacy is not expressly prohibited in New Mexico, any payments to a Traditional Surrogate must meet the strict limits under the adoption statutes. In addition, the parental rights of a Traditional Surrogate can only be relinquished pursuant to the adoption statutes and, therefore, in some circumstances the Intended Parent may be required to share custody and pay child support.
State law information provided by the following attorneys practicing Reproductive Law in this state:
Harold O. Atencio
Other attorneys practicing Reproductive Law in this state:
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