“Surrogacy Agreements” in Nevada – How They Work

A surrogacy agreement is a contract for a woman to carry and give birth to a child on someone else’s behalf. In Nevada, it is officially known as a “gestational” agreement.¹

People do not need to be married to hire a surrogate. Registered domestic partners and couples who live together may contract with a surrogate. So may single men and women.

The surrogate may negotiate for compensation and reimbursement of expenses.² In turn, the intended parent(s) may impose reasonable restrictions on the surrogate such as not smoking or drinking alcohol.³

Upon the child’s birth, the intended parent(s) have all legal rights and obligations of parents. This includes child custody rights and the obligation of child support.⁴

To help you better understand Nevada’s laws on gestational agreements, our Las Vegas family law attorneys discuss:

• 1. What kind of surrogacy does Nevada permit?
• 2. Who can be a surrogate?
• 3. Who can hire a surrogate?
• 4. Who will be considered the parents in a surrogacy?
• 5. What are the legal requirements for a gestational agreement?
• 6. What terms are illegal in a gestational agreement?
• 7. Can the surrogate or parents change their mind(s)?
• 8. What if the intended parents break up?
• 9. What are the remedies for breach of a surrogacy agreement?
• 10. Do intended parents have to adopt children born through surrogacy?
• 11. Why should I hire an attorney?

1. What kind of surrogacy does Nevada permit?

In Nevada, surrogacy must be so-called “gestational” surrogacy. This is surrogacy using the eggs of someone other than the surrogate.

Nevada law does not permit so-called “traditional surrogacy” in which the surrogate’s eggs are used. By law, the surrogate may not contribute any genetic material/gametes.⁵ This keeps the surrogate from being related to the child.

“Gestational” surrogacy in Nevada can be by in-vitro fertilization or a similar technique. The intended parent(s) can – but do not need to – contribute genetic material.

Note that for any surrogacy taking place in Nevada, state law applies, even whether the intended parents are domestic or international.

2. Who can be a surrogate?

Any adult woman can be a surrogate if at the time she signs the agreement:

• She has completed a medical evaluation relating to the anticipated pregnancy;
• She has consulted with independent legal counsel regarding the terms of the agreement and its potential legal consequences; and
• She has not contributed any genetic material to the pregnancy.⁶

3. Who can hire a surrogate?

Any single adult or couple may hire a surrogate in Nevada. This includes:

• Married couples of any gender,
• Registered domestic partners of any gender,
• Couples of any gender who cohabitate (live together), and
• Single people of any gender.

The intended parent(s) must consult with independent legal counsel regarding the terms of the gestational agreement and legal consequences.⁷

4. Who will be considered the parents in a surrogacy?

In Nevada, whoever hires the surrogate is legally the child’s parent(s). Courts issue a “pre-birth parentage order” validating the gestational agreement and establishing the intended parents’ parental rights. These orders dispense with the need to “adopt” the child.⁸

A sperm or egg donor is not the child’s legal parent unless the person intends to be the parent.⁹

5. What are the legal requirements for a gestational agreement?

A gestational agreement must be in writing in Nevada.¹⁰ The parties that must sign the agreement are:

• The woman agreeing to carry and give birth to the child (the “surrogate”);
• The surrogate’s spouse or registered domestic partner, if she has one;
• Any sperm or egg donors; and
• The intended parent(s) (if not the donors).

The agreement must also set forth:

• The amount of money, if any, the parent(s) will pay as a fee to the surrogate;
• The medical and living expenses the parent(s) will pay to the surrogate;
• The surrogate’s ability to choose a local provider for her care;
• That the donors, if they are not the intended parents, give up all parental rights;
• That the intended parent (s) will become the child’s legal parents on the birth of the child; and
• The risks of liabilities for the parties.¹¹

Gestational agreements should also include:

• Which medical exams the surrogate must take (such as for genetic abnormalities); and
• Provisions for what happens if the surrogate cannot get pregnant or miscarries.

6. What terms are illegal in a gestational agreement?

The surrogacy agreement may not condition compensation on the purported quality or specific traits of the resulting child.¹²

However, the surrogate may be liable for damages if the baby is damaged due to a violation of the terms of the agreement (such as drug use).

7. Can the surrogate or parents change their mind(s)?

The surrogate may withdraw her consent to assisted reproduction at any time before the placement of the

• eggs,
• sperm or
• embryos.¹³

She may be obligated to pay damages to the intended parent(s).

In no event will a court require a surrogate to become pregnant against her will.¹⁴

The intended parent(s) may also change their minds before the surrogate becomes pregnant. Though the surrogate may still be entitled to compensation.¹⁵

After the surrogate is pregnant, the intended parent(s) may not change their mind. They remain obligated to support a resulting child.¹⁶

8. What if the intended parents break up?

If a couple gets divorced in Nevada or breaks up before the surrogate becomes pregnant, the remaining spouse has the right to continue under the surrogacy agreement.

The former spouse or domestic partner will not become the parent of the child unless that right is expressly provided in the surrogacy agreement.¹⁷

9. What are the remedies for breach of a surrogacy agreement?

If a party violates any terms of the surrogacy agreement, the other parties may sue that person.

Remedies can range from monetary damages to an order that the other party complies with the agreement.¹⁸

In no circumstances, however, can a court order an intended surrogate to become pregnant.

10. Do intended parents have to adopt children born through surrogacy?

In Nevada, intended parents don’t have to adopt children born through surrogacy because the court would have already issued them a pre-birth parentage order establishing their parental rights.

The only times adoption may be necessary is if the surrogacy takes place in another state that does not issue pre-birth parentage orders.

Note that Nevada does not permit second-parent adoptions; however, a stepparent may adopt a child after getting married to the child’s parent. Therefore if a couple does not want to get married, then they could go to another state that does allow second-parent adoptions. Then if they come back to Nevada after the second-parent adoption process concludes, the Nevada Vital Records Department will have to recognize the adoption on the child’s birth certificate.

11. Why should I hire an attorney?

Nevada law requires that each party to a surrogacy agreement consult with a lawyer.

However, having an experienced Las Vegas surrogacy lawyer draft your gestational agreement offers additional advantages.

The law surrounding surrogacy in Nevada is constantly evolving. A Las Vegas family lawyer can help ensure that your gestational agreement is clear and enforceable no matter how the law changes.

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