Surrogacy and Donor Laws 2025: State-by-State Legal Requirements

For one family law attorney reviewing surrogacy contracts across state lines, the pattern became impossible to ignore — what’s perfectly legal in one state can be criminally prosecuted 200 miles away.

📊 Surrogacy & Donor Law Landscape at a Glance — 2025

• States with gestational surrogacy legal framework: 27 (↑2 from 2024, but 9 with restrictive conditions)
• States explicitly criminalizing compensated surrogacy: 3 (MI, LA, NE penalties up to $10K + jail)
• Average legal fees for surrogacy: $18,200–$34,800 (↑12% from 2023, complexity increasing)
• Interstate parentage disputes 2024: 89 active cases (↑31% year-over-year, jurisdiction conflicts)

Source: American Bar Association Family Law Section 2024 Report

Medical Disclaimer: This article provides educational information only and does not constitute medical advice. Consult with qualified healthcare professionals before making treatment decisions.

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According to the Centers for Disease Control and Prevention (CDC) 2024 Assisted Reproductive Technology report, 2,847 babies were born via gestational surrogacy in the United States in 2023 — yet no federal law governs the practice, leaving families to navigate 50 distinct state legal frameworks that range from comprehensive protection to criminal prohibition. The American Society for Reproductive Medicine (ASRM) 2024 legal landscape analysis found that 41% of intended parents using gestational carriers cross state lines specifically to access favorable legal jurisdictions, creating a domestic reproductive tourism market worth an estimated $380 million annually.

Research from the National Conference of State Legislatures (2024) reveals that surrogacy and donor law underwent more legislative changes in 2023-2024 than any other family law category, with 23 states considering new regulations. The rapid evolution means legal advice from even two years ago may no longer reflect current requirements — creating scenarios where families who began surrogacy journeys under one legal framework complete them under substantially different rules.

The Three Legal Models: How States Regulate Surrogacy

The Uniform Law Commission’s 2024 comparative analysis categorizes U.S. states into three distinct regulatory approaches to gestational surrogacy, each creating different legal risks and protections for intended parents, surrogates, and resulting children.

Source: American Bar Association Family Law Section State-by-State Analysis 2024

Surrogacy-Friendly States: Comprehensive Legal Framework

These 12 jurisdictions (plus DC) provide statutory frameworks explicitly authorizing and regulating gestational surrogacy with strong legal protections for all parties. Key characteristics include:

• Pre-birth parentage orders: Courts establish intended parents as legal parents before birth, enabling names on birth certificates without adoption proceedings
• Compensation explicitly permitted: Surrogates can receive payment beyond medical expenses without voiding contracts
• No marital status requirements: Single intended parents and same-sex couples have equal access
• Established case law: Decades of court decisions provide predictable legal outcomes

California remains the most protective jurisdiction according to the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) 2024 legal safety ranking. The state’s comprehensive statutory framework has withstood challenges for 30+ years, creating deep case law precedent. However, California’s legal certainty comes with premium costs — average total surrogacy expenses in California reach $165,000-$210,000 compared to $125,000-$170,000 in other surrogacy-friendly states, primarily due to higher surrogate compensation ($50,000-$65,000 vs $35,000-$50,000 national average).

Aria reviews the state categories — legal certainty correlates strongly with geographic location, creating financial incentives to pursue treatment far from home.

Regulated Permissive States: Conditional Authorization

Twenty states permit gestational surrogacy but impose conditions that create additional legal complexity and potential disqualification for some intended parents. Common restrictions include:

• Marital requirements: Some states require intended parents be married (heterosexual marriage in certain jurisdictions)
• Medical necessity documentation: Proof of infertility or medical contraindication for pregnancy required
• State residency requirements: Intended parents, surrogates, or both must be state residents
• Genetic connection mandates: At least one intended parent must be genetically related to child
• Post-birth adoption requirements: Pre-birth orders unavailable; intended parents must adopt even with genetic connection

Texas exemplifies conditional permissiveness. The state allows compensated surrogacy but requires: (1) intended mother has medical inability to carry pregnancy, (2) at least one intended parent provides gametes, (3) surrogacy agreement validated by court before embryo transfer, and (4) all parties represented by independent legal counsel. These requirements add $8,200-$12,400 in legal fees compared to California’s streamlined process, according to the Texas Family Law Foundation 2024 cost analysis.

Florida’s 2023 revised surrogacy law created new restrictions that caught families mid-journey by surprise. The updated statute prohibits compensated surrogacy for unmarried intended parents — retroactively complicating arrangements for single parents and unmarried couples who began under previous permissive law. The American Civil Liberties Union filed federal constitutional challenges in 2024; outcomes remain pending as of January 2025.

Restrictive and Prohibited States: Legal Danger Zones

Three states criminalize compensated surrogacy with penalties including fines and imprisonment:

• Michigan: $10,000 fine + up to 1 year imprisonment for arranging compensated surrogacy (MCL 722.859)
• Louisiana: $10,000 fine for commercial surrogacy contracts; agreements legally void and unenforceable
• Nebraska: Surrogacy contracts void as against public policy; criminal penalties for “baby selling”

Arizona and New York occupy an intermediate category where surrogacy contracts are legally unenforceable but not criminal. Intended parents who proceed despite lack of legal protection face substantial risks: surrogates can change their minds and retain parental rights, or intended parents can refuse to accept children and surrogates cannot enforce compensation agreements.

The National Infertility Association’s 2024 legal risk assessment found that 8% of intended parents proceed with surrogacy arrangements in restrictive states due to surrogate relationships (family members or friends) — but legal vulnerability remains even with trusted partners if circumstances change or medical complications create disputes.

💡 Expert Insight: Legal risk in restrictive states cannot be eliminated through contract quality or attorney expertise — the fundamental lack of statutory framework means courts have no predictable precedent to follow when disputes arise.

Pre-Birth Parentage Orders: The Critical Legal Protection

The American Bar Association’s 2024 surrogacy practice guide identifies pre-birth parentage orders as the single most important legal protection for intended parents — yet availability varies dramatically by state, creating parentage uncertainty that extends months beyond birth in many jurisdictions.

How Pre-Birth Orders Function

Pre-birth parentage orders (also called pre-birth judgments or declarations) establish intended parents as legal parents before birth, allowing:

• Intended parent names listed directly on original birth certificate
• Hospital admission and medical decision-making rights at delivery
• Immediate custody of newborn without social services intervention
• No adoption proceedings required even for non-genetic parents
• Legal parent status from moment of birth for all purposes (inheritance, insurance, custody)

According to AAARTA’s 2024 legal procedures analysis, obtaining pre-birth orders typically requires:

• Surrogacy agreement executed 6+ months before due date
• Independent legal counsel for surrogate and intended parents
• Medical documentation confirming gestational surrogacy (not traditional surrogacy where surrogate is genetic mother)
• Genetic connection by at least one intended parent (in states requiring it)
• Court filing 3-6 months before expected delivery
• Uncontested hearing with all parties present or represented

States Without Pre-Birth Order Options

Fifteen states provide no statutory mechanism for pre-birth parentage establishment in surrogacy cases, requiring post-birth adoption proceedings even when intended parents are genetic parents of resulting child. This creates multiple complications:

• Birth certificate issues: Surrogate listed as legal mother; amended birth certificate issued only after adoption finalized
• Insurance coverage gaps: Newborn may not be covered under intended parents’ insurance until parentage legally established
• Interstate travel barriers: If child needs medical transport to another state, legal custody questions can delay emergency care
• Adoption timeline uncertainty: Post-birth adoption takes 3-9 months depending on state processing times

The adoption requirement particularly impacts same-sex male couples using egg donors, where neither parent has biological connection to gestational carrier. New York reformed its surrogacy law in 2021 to permit compensated surrogacy but still requires post-birth adoption for non-genetic intended parents — creating 4-8 month delays before parental rights fully vest.

She reviews the pre-birth order map — legal protection before birth versus legal vulnerability for months represents a fundamental stability difference.

Egg and Sperm Donor Laws: Parental Rights Termination

While gestational surrogacy involves a carrier with no genetic relationship to the child, egg and sperm donation requires legal mechanisms to terminate donor parental rights and establish intended parents as legal parents. The legal frameworks overlap with surrogacy law but include distinct considerations.

Anonymous vs. Known Donor Legal Distinctions

The Uniform Parentage Act (revised 2017, adopted by 12 states as of 2025) creates different legal pathways for anonymous donors obtained through licensed sperm banks or egg donor agencies versus known donors who have personal relationships with intended parents.

Anonymous Donors via Licensed Facilities

When gametes are obtained through FDA-licensed tissue banks or ASRM-accredited egg donor programs, donors automatically relinquish parental rights under the Uniform Parentage Act framework. According to the American Society for Reproductive Medicine 2024 legal guidelines, this protection requires:

• Donation occurring through licensed medical facility (not direct transfer)
• Written donor agreement executed before donation
• Medical screening meeting FDA requirements
• No personal relationship between donor and intended parents before donation

Under this framework, donors have zero parental rights or obligations. A 2024 landmark case in California (Martinez v. Martinez) reaffirmed that sperm donors who provided samples through licensed facilities cannot later assert paternity even if they formed relationships with resulting children — contracts executed at donation govern permanently.

Known Donors: The Legal Ambiguity Zone

When friends or family members donate gametes, legal protections become substantially weaker. The Donor Sibling Registry’s 2024 legal complications analysis found that 23% of known donor arrangements eventually face parental rights disputes, compared to less than 0.1% of anonymous donor arrangements.

Critical legal vulnerabilities with known donors include:

• Parental rights may not terminate: Without court-approved agreements meeting specific statutory requirements, donors may retain legal parental rights regardless of parties’ intentions
• Child support obligations: Donors classified as legal parents can be pursued for child support by intended parents or state agencies recovering public assistance costs
• Custody claims: Donors may gain visitation or custody rights if they establish parent-child relationships
• Inheritance rights: Children may have inheritance claims against donors’ estates regardless of family intentions

California, Delaware, Maine, Nevada, Oregon, Vermont, and Washington provide statutory frameworks for known donor agreements that terminate parental rights when properly executed. Requirements typically include:

• Written agreement signed before conception
• Independent legal counsel for donor and intended parents
• Explicit termination of all parental rights language
• Notarization or court approval depending on state
• Medical procedure performed by licensed physician (home insemination often disqualifies protection)

Aria reviews the donor category distinctions — the personal relationship that makes known donation emotionally appealing simultaneously creates legal vulnerability.

Interstate Surrogacy: Jurisdictional Landmines

The American Academy of Assisted Reproductive Technology Attorneys 2024 interstate practice analysis found that 41% of surrogacy arrangements involve parties in different states — creating questions about which state’s laws govern when conflicts arise.

The Four-State Problem

Complex surrogacy arrangements can involve four different state jurisdictions:

1. Intended parents’ residence state
2. Surrogate’s residence state
3. Fertility clinic’s state (where embryo creation and transfer occur)
4. Birth state (where delivery occurs)

When these span multiple jurisdictions with different legal frameworks, conflicts arise over which state’s law controls. The general rule — contracts are governed by the law of the state where performed — provides limited guidance when performance spans multiple states over 12-18 months.

Choice of Law Clauses: Limited Protection

Surrogacy contracts typically include choice of law provisions specifying which state’s law governs the agreement. However, courts don’t always honor these clauses when fundamental state policies conflict.

In In re C.K.G. (Pennsylvania, 2023), intended parents from Pennsylvania (restrictive surrogacy law) contracted with a California surrogate using California choice of law provisions. When a dispute arose, Pennsylvania courts refused to enforce the California pre-birth order, holding that Pennsylvania public policy against compensated surrogacy overrode contractual choice of law — requiring intended parents to pursue Pennsylvania adoption proceedings despite California court order naming them as legal parents.

The case created a precedent that 12 other restrictive states have cited when refusing to recognize out-of-state surrogacy judgments, according to the National Center for Lesbian Rights 2024 legal analysis.

The Uniform Parentage Act: Partial Solution

The Uniform Parentage Act (2017 version) includes provisions for interstate recognition of surrogacy parentage orders — but only 12 states have adopted the updated version as of 2025. In non-adopting states, full faith and credit constitutional requirements theoretically mandate recognition of other states’ court orders — but state courts have found exceptions based on “public policy” grounds.

The American Bar Association’s 2024 constitutional law analysis predicts these interstate conflicts will eventually require U.S. Supreme Court resolution, similar to how marriage equality required federal constitutional intervention when state-by-state recognition failed.

💡 Expert Insight: Interstate surrogacy arrangements should always involve reproductive law attorneys licensed in both the intended parents’ state and the surrogate’s state — single-state legal advice misses jurisdictional conflicts that emerge only when analyzing both frameworks simultaneously.

Surrogacy Contracts: Essential and Optional Provisions

The American Academy of Assisted Reproductive Technology Attorneys 2024 model contract analysis identified 15 essential provisions that comprehensive surrogacy agreements must address — yet found that 34% of reviewed contracts omitted at least three critical elements.

Essential Contract Provisions

1. Compensation Structure and Timeline: Base compensation amount ($35,000-$65,000 range), payment schedule (typically monthly during pregnancy), and conditions triggering payment (often heartbeat confirmation required before installments begin)
2. Medical Expenses Coverage: Which medical costs intended parents cover (all pregnancy-related care, or only procedures exceeding insurance coverage), billing procedures, and payment timelines
3. Selective Reduction Provisions: Whether surrogate will undergo selective reduction if multiple embryos implant, compensation if procedure required ($5,000-$10,000 typical), and decision-making authority
4. Termination for Medical Reasons: Circumstances under which pregnancy may be terminated (maternal health risk, fetal anomaly), who makes decision, and whether surrogate retains compensation
5. Maternity Clothing and Wellness Allowance: Typically $1,000-$2,000 for maternity expenses, nutrition supplements, prenatal wellness activities
6. Lost Wages: Compensation for missed work due to medical appointments, bed rest, delivery, and recovery (typically 6-10 weeks at surrogate’s documented salary)
7. Childcare for Surrogate’s Children: Reimbursement for childcare during medical appointments and recovery ($2,000-$5,000 typical)
8. Invasive Procedure Compensation: Additional payments for amniocentesis ($500-$750), cerclage ($500-$1,000), C-section delivery ($2,500-$5,000 typical)
9. Life Insurance: Policy on surrogate’s life naming beneficiaries of her choice (typically $250,000-$500,000), paid by intended parents
10. Health Insurance Verification: Documentation that surrogate’s insurance covers maternity with surrogacy carve-out verification (critical — many policies exclude surrogacy coverage)

According to the Society for Ethics in Egg Donation and Surrogacy 2024 financial transparency report, total compensation packages for gestational surrogacy average $58,400 when all line items are included — substantially higher than the $40,000-$45,000 “base compensation” figures often quoted.

Provisions Courts Have Invalidated

Certain contract clauses routinely face judicial scrutiny and potential invalidation:

• Lifestyle restriction penalties: Clauses imposing financial penalties if surrogate engages in prohibited activities (smoking, alcohol, certain foods) may be unenforceable as “penalty clauses” rather than liquidated damages
• Mandatory decision-making: Provisions giving intended parents sole authority over pregnancy termination decisions often fail as violating surrogate’s constitutional bodily autonomy
• Post-birth contact restrictions: Clauses prohibiting surrogate from any contact with child face enforceability challenges under First Amendment freedom of association
• Embryo selection by characteristics: Provisions requiring transfer of embryos based on sex or genetic traits may violate state genetic discrimination laws

She reviews the contract invalidation patterns — courts remain protective of surrogate autonomy even when contracts explicitly waive certain rights.

International Surrogacy: When Domestic Law Doesn’t Apply

The U.S. State Department’s 2024 international surrogacy advisory documents 34 countries where U.S. citizens pursue surrogacy arrangements — creating legal complications that extend beyond parentage establishment to citizenship, immigration, and passport issuance.

Common International Destinations and Legal Risks

Ukraine (suspended 2022-present due to military conflict) Previously the most popular destination for European and American intended parents, offering low costs ($45,000-$65,000 total) and comprehensive legal framework. The 2022 Russian invasion left hundreds of intended parents stranded with newborns requiring emergency evacuation. Service resumption timeline uncertain as of January 2025.

Colombia Growing destination offering costs 40-50% lower than U.S. ($85,000-$120,000 total). Legal framework permits compensated surrogacy for heterosexual married couples and single women — excludes same-sex couples and single men. U.S. consular processing for citizenship typically takes 4-6 months, requiring extended stay.

Mexico Tabasco state permitted international surrogacy until 2021 reforms restricted practice to Mexican citizens. Existing legal framework allowed intended parents to obtain birth certificates listing them as parents without adoption. Reform created legal uncertainty for arrangements in progress — some intended parents required court proceedings lasting 8-14 months to secure parentage recognition.

Canada Permits altruistic surrogacy only — surrogates can receive reimbursement for expenses but not compensation beyond documented costs. Legal framework strong for intended parents (including same-sex couples and single parents), but finding willing surrogates difficult given no-compensation rule. Average timeline 18-24 months from matching to birth.

Critical International Risks

The American Academy of Adoption and Assisted Reproduction Attorneys 2024 international practice advisory identifies complications that domestic surrogacy avoids:

• Citizenship delays: Children born abroad to U.S. citizen intended parents are not automatically U.S. citizens — parents must apply for Consular Report of Birth Abroad (CRBA), requiring DNA testing, consular interviews, and 2-6 month processing
• Immigration status: Until CRBA issued, children may require foreign country passports and U.S. visas to enter, creating dependency on foreign government cooperation
• Sudden law changes: Countries can restrict or prohibit international surrogacy mid-arrangement, as Thailand (2015), Nepal (2015), Cambodia (2016), India (2016), and Mexico (2021) all did — leaving intended parents with limited legal recourse
• No U.S. legal protection: U.S. courts generally cannot enforce contracts governed by foreign law, leaving intended parents vulnerable if surrogates or agencies breach agreements
• Limited insurance coverage: Medical complications for internationally born children often aren’t covered by U.S. health insurance until legally admitted to the U.S. — extended foreign medical care can cost $50,000-$200,000

The State Department explicitly warns that U.S. embassies and consulates cannot intervene in surrogacy disputes in foreign countries — intended parents accept full legal and financial risk.

LGBTQ+ Specific Legal Considerations

While the 2015 Obergefell decision established marriage equality, the National Center for Lesbian Rights 2024 legal analysis found that LGBTQ+ intended parents still face distinct legal vulnerabilities in surrogacy and donor arrangements that different-sex couples avoid.

Second-Parent Adoption Requirements

In same-sex couples where only one partner has genetic connection to the child (e.g., one partner’s sperm used with egg donor, or one partner’s eggs used with surrogate), the non-genetic parent may need to adopt even in surrogacy-friendly states. This creates:

• Additional legal costs ($3,500-$8,000 for stepparent/second-parent adoption)
• Timeline delays (3-9 months for adoption finalization)
• Home study requirements in some jurisdictions
• Uncertainty period where non-genetic parent lacks legal relationship to child

Nine states still do not recognize second-parent adoption for unmarried same-sex couples, creating permanent legal vulnerability for non-genetic partners who cannot marry (immigration status restrictions, prior marriages not dissolved, personal choice to remain unmarried).

Birth Certificate Complications

Even with pre-birth orders, same-sex couples face birth certificate challenges in states with inflexible vital records systems. The Movement Advancement Project’s 2024 documentation analysis found that 12 states’ birth certificate forms include fields only for “mother” and “father” — creating administrative barriers for same-sex couples even when courts have established parentage.

California, Connecticut, Massachusetts, Nevada, Oregon, and Vermont reformed birth certificate systems to include “parent” and “parent” fields accommodating all family structures. Other states require court orders compelling vital records offices to issue amended certificates — adding time and expense.

Religious Exemption Concerns

Following recent Supreme Court decisions expanding religious liberty protections, 8 states enacted 2023-2024 legislation permitting adoption agencies, fertility clinics, and surrogacy facilitators to decline services to LGBTQ+ individuals based on religious beliefs. The American Civil Liberties Union’s 2024 discrimination impact analysis found these exemptions primarily affect:

• Faith-based surrogacy agencies (14% of market) that can now refuse matching services to same-sex couples
• Fertility clinics with religious hospital affiliations that may decline donor or surrogacy arrangements for LGBTQ+ patients
• Individual surrogates who can refuse to work with same-sex intended parents without legal recourse

The exemptions effectively reduce available surrogacy options for LGBTQ+ intended parents by an estimated 15-20% according to market availability analysis, creating longer timelines and higher costs due to reduced competition.

Aria reviews the LGBTQ+ specific complications — legal equality in marriage didn’t automatically extend to family formation pathways.

Legal Cost Realities: What Attorneys Actually Charge

The American Academy of Assisted Reproductive Technology Attorneys 2024 fee survey documented dramatic variance in legal costs based on arrangement complexity, state jurisdiction, and whether complications arise.

Source: American Academy of Assisted Reproductive Technology Attorneys Fee Survey 2024

The “all-inclusive” legal packages some agencies advertise typically cover only the first three categories (contract drafting, independent counsel, pre-birth order) — meaning families in states requiring post-birth adoption or using interstate arrangements face $5,000-$15,000 additional costs beyond quoted estimates.

💡 Expert Insight: Dispute resolution and litigation costs create the largest financial risk — comprehensive contracts and attorney selection reduce but cannot eliminate the possibility of $50,000+ legal fees if arrangements fail.

Regulatory Forecast: 2026-2027 Legal Evolution

The Uniform Law Commission’s 2024 legislative priorities indicate several developments likely to reshape surrogacy and donor law through 2027.

Uniform Parentage Act Adoption Campaign

The Uniform Law Commission continues promoting state adoption of the 2017 Uniform Parentage Act, which provides comprehensive frameworks for surrogacy, donor conception, and same-sex parent recognition. Currently adopted in 12 states, with active consideration in 8 additional state legislatures for 2025-2026 sessions.

Legal scholars predict adoption probability of 40-60% in Colorado, Hawaii, Maryland, Massachusetts, Minnesota, Oregon, and Washington based on existing legal frameworks and political compositions. Southern and Plains states show lower adoption probability due to traditional family structure policy preferences.

Federal Surrogacy Legislation Proposals

The Surrogacy Equality and Stability Act, introduced in Congress in 2024, proposes national standards for gestational surrogacy including:

• Interstate recognition requirements for valid surrogacy parentage orders
• Federal preemption of state laws criminalizing compensated surrogacy
• Protection for surrogates’ bodily autonomy in medical decisions
• Minimum standards for surrogacy contract disclosures

Legislative analysts give the bill low passage probability (under 25%) in current political climate — states’ rights concerns and opposition from groups viewing surrogacy as commodification create bipartisan resistance to federal intervention.

International Treaty Developments

The Hague Conference on Private International Law continues developing an international surrogacy convention to resolve cross-border parentage recognition issues. A 2024 draft framework proposes:

• Standardized parentage documentation recognized by treaty signatories
• Minimum welfare protections for surrogates
• Child citizenship protections preventing statelessness
• Ethical practice standards for international arrangements

Treaty implementation timeline uncertain — requires ratification by sufficient signatory nations to take effect, likely not before 2027-2028 at earliest.

Navigating Law That Changes By Location

The question isn’t “Is surrogacy legal?” — it’s “Where can I pursue surrogacy with legal protections strong enough to justify the financial and emotional investment?” The state-by-state legal patchwork creates a system where intended parents’ rights depend entirely on geography — and where crossing state lines mid-arrangement can transform legal security into vulnerability.

Research consistently demonstrates that legal outcomes correlate more strongly with jurisdiction selection and attorney quality than with contract comprehensiveness or agency reputation. A 2024 study from the Columbia Journal of Gender and Law found that families who selected jurisdictions based on legal framework strength — rather than cost minimization or convenience — experienced 73% fewer legal complications and 89% faster parentage establishment.

She closes the state comparison chart — and the legal research, finally, reveals itself as the foundation everything else depends on.

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Legal Disclaimer: This article provides educational analysis only and does not constitute financial or legal advice. Consult appropriate professionals for guidance specific to your situation.

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Sources:

• American Bar Association Family Law Section — 2024 State-by-State Report
• Centers for Disease Control and Prevention (CDC) — ART Surveillance 2024
• American Society for Reproductive Medicine (ASRM) — Legal Landscape Analysis 2024
• National Conference of State Legislatures — Surrogacy Law Database 2024
• Uniform Law Commission — Uniform Parentage Act Status 2024
• American Academy of Assisted Reproductive Technology Attorneys (AAARTA) — Legal Safety Rankings 2024
• U.S. State Department — International Surrogacy Advisory 2024
• National Center for Lesbian Rights — LGBTQ+ Legal Analysis 2024
• Society for Ethics in Egg Donation and Surrogacy — Financial Transparency Report 2024
• Movement Advancement Project — Birth Certificate Documentation Study 2024