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Is Surrogacy Legal in New Mexico?

Surrogacy Law in New Mexico

New Mexico Surrogacy Law: Types of Surrogacy

New Mexico law does not authorize or prohibit surrogacy arrangements. Specifically, state law does not “authorize or prohibit an agreement between a woman and the intended parents: (1) in which the woman relinquishes all rights as the parent of a child to be conceived by means of assisted reproduction; and (2) that provides that the intended parents become the parents of the child. New Mexico Statutes. Ann.§40-11A-801(A).

Traditional (genetic) surrogacy isn’t expressly prohibited, although any payments to a traditional surrogate are required to meet the limits of adoption statutes on the state’s books. In addition, parental rights of a Traditional Surrogate can only be relinquished pursuant to the adoption statutes. In some cases, intended parents may be required to share custody and pay child support.

Are There Surrogate Requirements in New Mexico?

No specific legal requirements exist to serve as a gestational surrogate in the state of New Mexico.

Does New Mexico Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Courts in New Mexico have been known to routinely grant pre-birth orders, although given the ambiguous nature of state law it should not be considered a given.

The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:

Yes

  • Married heterosexual couples, using their own egg and own sperm
  • Married heterosexual couples, using a sperm or egg donor
  • Unmarried heterosexual couples, using their own egg and own sperm
  • Married same sex couples, using an egg or sperm donor

Maybe

  • Unmarried couples, using an egg or sperm donor
  • Single parents using an egg or sperm donor

For intended parents who are in no way related to the resulting child, the conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:

Yes

  • Married heterosexual couples
  • Unmarried heterosexual couples
  • Same sex couples

Maybe

  • Single parents

Post-birth adoption is an option for parents who have trouble establishing parentage with a pre-birth order. However, adoption requires the Gestational Surrogate to sign a relinquishment of parental rights before a judge—after counseling has been completed or waived by a court.

Whose names go on the birth certificate in New Mexico?

Parents will be listed on the birth certificate as “parent and parent.”

An international same-sex male couple can obtain a birth certificate listing the biological father and gestational surrogate as parents. Should parents wish to list both fathers on the birth certificate, the change can be made with relative ease. The process can be expedited on the basis of the child being born in state, but domestication of the order may be required.

Surrogacy Conditions for Same-Sex Couples in New Mexico

Surrogacy conditions for same-sex couples in New Mexico have generally been positive and supportive with New Mexico judges quickly and easily granting pre-birth parentage orders for same-sex parents through surrogacy, as well as post-birth parentage orders for those same-sex couples whose home country requires such an order. However, without specific law on point there are no guarantees and same-sex couple parents could face legal risk.

Are There Options for Unmarried Intended Parents in the state of New Mexico?

Yes, New Mexico courts have generally been supportive of unmarried intended parents with New Mexico judges granting pre-birth parentage orders for unmarried parents through surrogacy. However, without specific law on point there are no guarantees and unmarried intended parents could face legal risk.

Egg Donation Law

New Mexico Statutes.§ 40-11A-702 states definitively that donors of eggs, sperm or embryos are not the parents of children conceived by assisted reproduction.

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in New Mexico*

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.