Arkansas Surrogacy Law
Arkansas law provides for surrogacy contracts, but it is unclear how courts may apply the law to surrogacy situations involving gay, lesbian, bisexual and transgender individuals and couples.
State law generally holds surrogacy contracts valid and enforceable. It also has clear guidelines that specify the legal parents in several different surrogacy scenarios. Specifically, it states (1) if the intended father is the sperm donor, and he is married to the intended mother, then they are both considered the legal parents; (2) if the intended father is the sperm donor and he is unmarried, then he is the sole parent; and (3) if an anonymous donor inseminated the traditional surrogate, then the intended mother is the legal parent. Nevertheless, it is unclear how courts would apply these particular provisions to a gay, lesbian, bisexual or transgender individual or couple, especially in light of the ban on GLBT foster parents and the use of "moral character" laws to deny GLBT parents custody of their children. Case law does not specifically address surrogacy by same-sex couples, but recent cases do show a broad support for surrogacy agreements in Arkansas. In one 1998 case, a heterosexual couple who had a child though a surrogate mother in California went to Arkansas for the required 30 days to legally adopt the child. This action circumvented the mandated six-month residency requirement under California law. The Arkansas Supreme Court ruled that this was in agreement with Arkansas law and was valid. In one case in 1993, a surrogate mother decided that she wished to keep the twins she was carrying for an Arkansas couple. Because she lived in Michigan, where surrogacy is illegal, a court granted her petition to revoke the surrogacy contract. However, the court granted custody to the intended father in Arkansas, allowing her visitation rights. After the surrogate failed to contact the children for one year, the wife of the intended father moved to adopt them in Arkansas. The Arkansas Supreme Court granted the petition to adopt, finding it in the best interest of the child. While the case was decided on neutral custody law, it does demonstrate the degree to which Arkansas courts are willing to assert their jurisdiction to protect surrogacy agreements.
Citations: ARK. CODE ANN. § 9-10-201 (2002); In Re Samant, 333 Ark. 471 (Ark. 1998); In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416 (Ark. 1993).
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Last Updated: 6/10/2004