State Laws and Legislation

Arizona Surrogacy Law

Summary: Arizona law prohibits both traditional surrogacy agreements (in which the surrogate mother is the biological contributor of the egg) and gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg), but part of that statute has been ruled unconstitutional by an appellate court. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.

Explanation: An Arizona statute forbids “surrogate parent contracts,” and it states that if a surrogacy occurs, the surrogate is the legal mother of the child. Furthermore, the surrogate’s husband, if she is married, is presumed to be the father of the child; however, the law maintains that this presumption can be rebutted by evidence. The automatic determination of surrogate as legal mother was challenged in the 1994 case, Soos v. Superior Court ex rel. County of Maricopa. In Soos, a husband and wife entered into a gestational surrogacy agreement using the eggs from the wife and sperm from the husband. During the course of the surrogate’s pregnancy, the wife filed for divorce and sought custody of the unborn triplets. The husband argued that he was the biological father of the children and, pursuant to Arizona law, the surrogate was the biological mother. The trial court found that the provision automatically conferring legal-mother status to the surrogate was unconstitutional. An Arizona Court of Appeals 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 legal parentage but denying that same chance to the intended mother. 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 law prohibiting surrogacy agreements is unclear. At the very least, Soos establishes that an intended mother in the counties within the jurisdiction of Appellate Division One (Apache, Coconino, La Paz, Maricopa, Mohave, Navajo, Yavapai and Yuma) is entitled to rebut the presumption that a surrogate is the legal mother of a child born of a surrogacy arrangement.

There is no explicit prohibition in Arizona on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals adopting the child of their same-sex partner.

Citations: ARIZ. REV. STAT. § 25-218 (2008); Soos v. Superior Court ex rel. County of Maricopa, 897 P.2d 1356 (Ariz. Ct. App. 1994).

Updated: Tue, September 08, 2009 - 11:00:12