Arkansas Surrogacy Law

Summary: Arkansas law provides for surrogacy contracts, but it is unclear how courts would apply the law to surrogacy situations involving lesbian, gay, bisexual and transgender (LGBT) individuals and couples.

Explanation: State law generally holds surrogacy contracts valid and enforceable. It also has clear guidelines that outline legal parentage in several different surrogacy scenarios: (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. The case law does not specifically address surrogacy by same-sex couples, but some cases do show a broad support for surrogacy agreements in Arkansas. In 1993, a surrogate mother decided that she wanted to keep the twins she was carrying. Because she lived in Michigan, where surrogacy is illegal, a court granted her petition to revoke the surrogacy contract, but the court also granted custody to the intended father in Arkansas, only granting her visitation rights. After the surrogate failed to contact the children for one year, the wife of the intended father moved to adopt them. The Arkansas Supreme Court granted the petition to adopt, finding it in the best interests of the children. 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. The Supreme Court heard another case related to a surrogacy agreement in 1998, when a husband and wife who arranged to have a child through a surrogate mother in California went to Arkansas for the required thirty days to legally adopt the child. They took this action because the state of California mandated a six-month residency as a prerequisite for adoption. The Arkansas Supreme Court upheld the surrogacy agreement and awarded custody to the intended parents.

In November 2008, voters in Arkansas approved a ballot measure making it illegal for unmarried, cohabiting individuals to adopt or provide foster care to minors. While this law applies to all individuals who fit the description, it was clearly aimed at rescinding the rights of the LGBT community, and it suggests that although Arkansas has some of the most liberal laws in the country with regard to surrogacy agreements, it remains unclear how the state’s courts would apply these particular provisions to LGBT individuals or couples.

Citations: ARK. CODE ANN. §§ 9-10-201, 301, 304 (2009); In re Adoption of K.F.H., 844 S.W.2d 343 (Ark. 1993); In re Samant, 970 S.W.2d 249 (Ark. 1998).

Updated: Tue, September 08, 2009 - 11:00:01