Arizona Surrogacy Law
The legal status of surrogacy agreements in Arizona is unclear. While Arizona law prohibits both traditional (in which the surrogate mother is the biological contributor of the egg) and gestational (in which the surrogate mother is not the biological contributor of the egg) surrogacy agreements, part of that statute has been ruled unconstitutional by an appellate court.
Arizona statute forbids "surrogate parent contracts." However, should a surrogacy occur, the law states that the surrogate is the legal mother of the child she carries and, if she is married, there is a rebuttable presumption that her husband is the child’s father. The automatic determination of surrogate as legal mother was ruled unconstitutional by an Arizona appeals court. The case law calls into question the validity of the prohibition of surrogacy arrangements. However, because the appellate court opinion may only have struck down one provision of the surrogacy law, and because the Arizona Supreme Court chose not to review the case, the precise scope of the prohibition is unclear. In one case in 1994, a husband and wife entered into a gestational surrogacy agreement. Eggs from the wife were removed, fertilized with the husband’s sperm and implanted in the gestational surrogate, who became pregnant with triplets. During the course of the surrogate’s pregnancy, the wife filed for divorce and sought custody of the unborn children. The husband argued that he was the biological father of the children and, pursuant to statute, the surrogate was the biological mother, leaving the wife no standing to seek custody. The trial court found the section of statutory prohibition on surrogacy agreements which automatically conferred status as legal mother to the surrogate unconstitutional. The Court of Appeals, Division One upheld the trial court’s conclusion, finding that the statute violated the Equal Protection Clause of the Fourteenth Amendment by granting the intended father an opportunity to establish paternity but denying the same chance to the intended mother. Thus, at least in the counties within the jurisdiction of Appellate Division One (Apache, Coconino, La Paz, Maricopa, Mohave, Navajo, Yavapai and Yuma) a purported mother is entitled to rebut the presumption that the surrogate is the legal mother of the child born of the surrogacy arrangement.
Citations: A.R.S. § 25-218 (2001); Soos v. Superior Court ex rel. County of Maricopa, 182 Ariz. 470 (Ct. App. 1994).
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Last Updated: 6/10/2004