State Laws and Legislation

Oregon Surrogacy Law

Summary: Oregon surrogacy law appears to allow only uncompensated surrogacy arrangements. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.

Explanation: The Oregon statute prohibiting “buying or selling a person” has an explicit exemption for “fees for services in an adoption pursuant to a surrogacy agreement.” This appears to codify the conclusion of a 1989 opinion issued by the Attorney General, which indicated that the state may invalidate any agreement in which money is exchanged for the right to adopt a child (particularly when the birth mother contests it). The case law confirms that if a surrogate mother is compensated for her consent to adoption under a surrogacy contract, the contract is unenforceable. Regardless, it appears that the courts will uphold a surrogacy arrangement in which the compensated surrogate mother would have carried the baby with or without payment. In one 1994 case, an Oregon Court of Appeals upheld an uncontested surrogacy arrangement, refusing to invalidate the agreement even though payment to the surrogate mother exceeded her pregnancy-related expenses. The Court emphasized that the facts indicated the surrogate would have entered into the agreement even without compensation and that she was not seeking to withdraw her consent for the adoption of the child. However, this case was decided before the statutory provision discussed above was passed by the legislature.

An administrative regulation in Oregon makes it legal for LGBT couples to jointly adopt a child, and it appears to also allow LGBT individuals to adopt the child of their same-sex partner.

Citations: OR. ADMIN. R. 413-120-0200(3) (2009); In the Matter of the Adoption of Baby A and Baby B, 877 P.2d 107 (Or. Ct. App. 1994); 46 Op. Atty. Gen. Ore. 221 (April 19, 1989), 1989 Ore. AG LEXIS 26.

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Updated: Thu, September 10, 2009 - 12:00:16