Decades ago, during compensated surrogacy’s infancy, obtaining a parentage order was risky proposition. Endless time and effort went in to considering the venue of your parentage case, vetting potential surrogates and parents for favorable judges, clerks, even medical professionals. That “Wild West” time produced not only many loving families but forged the underpinnings of the legal landscape we work in today. While every state has sauntered along at its own pace, as we stand today most jurisdictions in the US are perfectly viable for supporting surrogacy and specifically, the parentage orders that make the ART world go round.
With that said, not every state’s parentage process is created equally. The cultural melting pot of the country as a whole is a good representation of our patchwork of legal procedures. An ever-increasing number of states derive their protocol from statute; many more remain based on precedent and the absence of anti-surrogacy legislation. A couple of states still refuse to offer parentage orders at all. And even beyond where we are “today,” a googolplex of words have been spoken lately about how assisted reproduction laws and regulations will change in the face of the dynamic legal and cultural environment we find ourselves in.
Given the wide array of parentage order situations potentially available to us, it is not a surprise that many ART professionals, lawyers in particular, can differ in opinion on the subject of “forum shopping.” When presented with the ability to file a parentage order in two or more jurisdictions, which should you choose? For example: California has a strong, supportive statute controlling surrogacy parentage orders. That statute in question says California can assert jurisdiction (read: make the call about parentage) if: the surrogate lives in California; the intended parents live in California; the transfer occurs in California; or if any of the people involved merely sign the contract within the state of California. It is possible to obtain a parentage order in California for two parties who live full-time in a different state, provided one of them flies to California for 20 minutes simply to sign before a California notary. Many other states have more complex, more restrictive, or more tenuous jurisdictional requirements. But California, for one, gives lawyers a strong option for jurisdiction if a match is otherwise problematic.
Let us now look at the state of Arizona. Arizona is a jurisdiction that will not enforce a surrogacy agreement. If either party needs to enforce the agreement via litigation and Arizona is your only option for venue, you are (and please excuse the technical lingo) S.O.L. To prevent such a liability in your agreement, it is not uncommon to have the surrogate or intended parents travel to California from Arizona and sign the agreement, ensuring that you have California jurisdiction throughout the journey. Without such efforts, the Parties run the risk of your contract being unenforceable.
But here comes the wrinkle: While Arizona will not provide a venue to enforce a surrogacy agreement, it will grant a surrogacy parentage order without issue. In this hypothetical, we have valid jurisdiction to file the parentage order in California or Arizona. Where should it be filed? The traditional line of thinking is that you should always file in the jurisdiction where the surrogate will be giving birth. The order will be asserting control over the delivery hospital, a county vital records office, a state birth certificate office, et cetera. Therefore, a jurisdiction in that county or state is preferable. But is it necessary? That is a growing question (or concern, depending on where you fall.)
In our California/Arizona hypothetical, many deliveries in Arizona have proceeded without incident while relying on a California order. But perhaps that isn’t a universal experience. And in other states, that might be a far riskier proposition. A growing number of attorneys and agencies are reporting that some states are growing resistant to honoring out of state parentage orders. Texas, for example, has been known in the past to accept out-of-state parentage orders; but we are now hearing reports of hospitals or counties outright refusing to accept non-Texas parentage orders. This can result in difficult situations at the hospital, in obtaining birth certificates or medical records, or obtaining insurance for the newly born.
Texas and Arizona are examples on the far ends of the bell curve. Many states have no issue accepting parentage orders from out of state. But what is best practice in situations where you may have options? Is there a best practice? Is there any risk involved in doing so even when the system has worked before? If there is a risk, is there an acceptable level? These questions can all be answered by the most famous lawyerspeak of all time: It depends! How does each state word their jurisdictional requirements. Who the parties are and their tolerance for risk. How well do the legal professionals know the counties and judges involved. There is no “bright line” rule anywhere in this discussion, and it is unlikely that will change anytime soon.
Conclusions and Recommendations:
It is possible to file a parentage order in a different state than your surrogate and have it be effective. Whether or not it is recommended is always going to come down to the details. Some attorneys may have a higher level of comfort with it than others, but that doesn’t mean someone is incorrect. The only true best practice that can stated with authority is that the entity upon which you will be attempting to enforce the order should be contacted well in advance in order to determine if an out of state order is acceptable. Call the delivery hospital. Reach out to vital records. Speak with a local counsel who is familiar with the reality on the ground. Make sure that when your parties show up in State A with an order from State B there won’t be any S.O.L action. A little pre-planning will go a long distance.